By Dayan Jayatilleka –
The visit of the UN Special Rapporteur on Human Rights and Countering Terrorism, Ben Emmerson QC, a British national, was newsworthy in the extreme. Firstly, it exposed the promise made by Prime Minister Wickremesinghe to appoint a Special Prosecutor. This promise is stated in the official statement issued by Emmerson, which is posted on the UN website, and was also read out by him at the media conference and seen and heard by anyone who watched the TV news a few days back. The relevant portion of the statement reads as follows:
“The Special Rapporteur was given a personal assurance by the Prime Minister that…the Government would…set up an Office of the Special Prosecutor to bring criminal charges against those involved in the most serious atrocities committed on both sides of the conflict.” (Source: UN Sri Lanka)
A great many pertinent questions arise here. Why a Special Prosecutor and who or what will he/she prosecute? The job description of the Office of the Special Prosecutor, as contained in Ben Emmerson’s written statement is “to bring criminal charges against those involved in the most serious atrocities committed on both sides of the conflict.” The wording of the written statement clearly presupposes that “serious atrocities” were committed by both sides, meaning by the Sri Lankan armed forces as well. As for “both sides”, since the Tigers are either dead, in self-exile, rehabilitated and released or (a handful) in jail, this means the only target that’s left standing is Sri Lankan military.
This was made absolutely transparent at his media briefing. Shamindra Ferdinando of The Island quotes him as follows:
‘Emmerson said: “…None of the measures so far adopted to fulfill Sri Lanka’s transitional justice commitments are adequate to ensure real progress and there is little evidence that perpetrators of war crimes committed by members of the Sri Lankan armed forces are being brought to justice.” (‘Implement Geneva resolution or face consequences’ – UN, The Island, July 15th 2017)
What is the case for a Special Prosecutor? Is it that there will be Special Laws, which are not on the statute books yet and were certainly not on the books at the time of the commission of the said acts? Is it that the Special Prosecutor will be outside the A-G’s Dept. or constitute a special annex of that department and if so why such a new architecture?
Why an “Office” of the Special Prosecutor rather than simply a designation, a new post? What makes a Special Prosecutor’s Office so “special”? Criminal charges are processed under normal law, by the Attorney-General’s Department. Why is that apparatus not good enough for the task at hand, especially since the A-G has apparently informed the UN Special Rapporteur that members of the armed forces who are guilty of serious offenses will be prosecuted to the full extent of the law?
Is it that the Special Prosecutor should be one who has not lived through the war in Sri Lanka and has risen through the Sri Lankan state system in the last thirty years? Is it that an expatriate stooge of Sri Lankan origin who was immune from the terror of the Thirty Years War and therefore does not know the existential reality we collectively experienced, is earmarked for the task and prosecute those who saved us all and may have made mistakes, even grievous ones, in the course of doing so? Is it that the “Office” of the Special Prosecutor will be the local arm or de facto local branch of the Office of the High Commissioner for Human Rights (OHCHR), staffed with brainwashed Sri Lankan NGO kids with law and human rights degrees from Western universities; a drone piloted from Geneva to hunt down combat heroes for war crimes trials?
The second most important aspect of the recent visit by the UN Special Rapporteur is that in his official statement posted on the UN website, he made shocking remarks that were completely outside the purview of any Special Rapporteur– and I should know because I served on the small committee of Ambassadors in Geneva which actually selected Special Rapporteurs from among applicants/nominees.
What is utterly appalling is that this UN Special Rapporteur thinks it is within his mandate to advocate, even propel “a new order in Sri Lanka”! He says in his written statement:
“There is still time to get this legislation right, and for it to become the cornerstone of a new order in Sri Lanka. The Ministry of Foreign Affairs has undertaken to consult with my team in Geneva within the next two weeks.” (UN Sri Lanka)
Whether he means a new legal order, political order, social order or any kind of order whatsoever, that is the exclusive preserve of the sovereign people and the democratic political institutions and processes of Sri Lanka. Perhaps as a UN Special Rapporteur he assumes that Sri Lanka is not a sovereign state but a UN protectorate!
His written statement goes on to say: “My plea to the Government and the people of Sri Lanka is to let these be the right steps, and not to allow the process to be diverted by retrograde elements in the security establishment and their allies in Government.” (UN Sri Lanka)
This is an open reference to the alignment of political forces in Sri Lanka, a sovereign state, and an attempt to intervene in support of one or other of the schools of thought that the Special Rapporteur sees within the Sri Lankan security forces and government. Obviously he perceives “retrograde elements in the security establishment and their allies in Government”. The Daily FT reports that at his media briefing he went on the record opining that the situation “reflects the continuing influence of certain vested interests in the security sector, who are resistant to change, and above all, to accountability.”
At his media briefing he said on the record that “We need now to be uniting behind the Government, all those within the Government who are committed to delivering peace”. Who on earth does he mean by “we”? The UN is an intergovernmental body, composed of sovereign states. No UN official or Special Procedures mandate holder can make an official comment calling for anyone to “be uniting behind the Government”—which is a political exhortation–still less differentiate between “all those within the Government who are committed to delivering peace” and presumably those who, in his opinion, are not! If this isn’t gratuitous interference in the internal political affairs of a sovereign state, I don’t know what is! What is worse he is interfering not only in the internal affairs of the sovereign Sri Lankan State but also the internal dynamics of the Government itself!
None of that which he has said above is any of his business. It is the kind of remark that would earn an immediate, severe rap across the knuckles from the Foreign Minister, Foreign Ministry spokesperson, and/or Ambassador/PR in Geneva of any self-respecting government and country. With the laudable exception of Justice Minister Wijeyadasa Rajapakshe, this present dispensation does not appear to fit into that category!
The third revelation is that the institutional nest of the collaborationist impulse and the main basecamp of the neocolonial Fifth Column within the Sri Lankan state is “the Ministry of Foreign Affairs” which “has undertaken to consult with my team in Geneva within the next two weeks.” So it is not that the UN Special Rapporteur’s team will consult with the Foreign Ministry of the country concerned but that the Foreign Ministry of the country concerned will consult with Emmerson’s team! Have the Ministers of Justice and Law and Order approved of this intrusive over-lordship and corresponding servility? Are they even aware of it? Is the President?
The fourth important point made by the visiting UN Special Rapporteur is that all his strictures flow not from purely external imposition but from commitments entered into by this Govt. in 2015 and reiterated in 2017 when it secured an extension. ‘Emmerson said: “Two years on and already four months into a two-year extension granted to the government by the Human Rights Council the progress in achieving the key goals set out in the Geneva Resolution is not only slow but seems to have ground to a virtual halt”.’ (The Island, Ibid)
The fifth point of interest and concern that arises from the UN Special Rapporteur’s statement and his remarks at the media conference, is the frankly threatening character of his remarks. The Daily FT quotes him as saying:
“There will be a point that the international community reaches the end of its patience, and then a range of consequences could befall Sri Lanka…The possible range of repercussions is a matter of international diplomacy and predictions, and depends on how far things go and how far along the path it is going…”
He warned the country is at risk of having its newly regained GSP+ facility revoked if significant progress is not observed on the reconciliation front. A host of other restrictions may be imposed on Sri Lanka if the United Nations Human Rights Council (UNHRC) commitments are not met, he added.
“…Such as potentially increasing the various measures by the Human Rights Council or indeed a reference to the Security Council, there is a range of measures increasing in severity that are potentially available for the international community,” he said.
“There is little evidence that perpetrators of war crimes committed by members of the Sri Lankan armed forces are being brought to justice,” he said.
…He said “all of that, we will have to look at, at the end of the current extension. But there comes a point where patience runs out.”
In moral, ethical and political terms, in terms of legitimacy and legality, neither this country nor indeed this Government should feel committed to this Resolution. Should we have felt committed to colonial rule because a misguided few of our ruling elite of the time signed the Kandyan Convention of 1815? Did we feel committed? Obviously not! Should the French have felt committed to support Nazi German Occupation simply because the Vichy regime of Marshal Petain disgracefully collaborated? Obviously not! So it with the Mangala–Ranil commitment made in Geneva, which is the domestic replay of the wretched CFA signed by Ranil and Prabhakaran and endorsed by the so-called Co-Chairs. Did we as a country, as a people, feel bound by that singular treachery? No!
Given that the co-sponsorship of the Geneva resolution was not debated and endorsed beforehand by the legislature of this Republic, there is absolutely no reason that the Sri Lankan polity should feel it has to honor any such commitment entered into behind its back.
Furthermore, given that the Cabinet presided over by the head of State, head of Government and Commander-in-Chief of the armed forces, President Sirisena, did not discuss it line-by-line and endorse it beforehand, the Government as a whole should not feel committed to implementing this resolution cosponsored by a few ‘Inglorious Basterds’ (to use the title of Quentin Tarantino’s movie), however highly placed locally.
The fundamental basis on which Sri Lanka must respond to and resist the Geneva threat/challenge was enunciated by a UNP leader and Sri Lankan President, at a high point of the country’s regional achievement and standing:
“How can legitimate governments, deriving their sovereignty from their people, accept fetters on their freedom from outside? We must be alert to the danger of a new colonialism, wrapped in spurious moral considerations, emanating from alien cultures.” (President Ranasinghe Premadasa, Address to the Opening session of the 6th SAARC Summit, Colombo, 21st December 1991).
There is one thing though about which we can all agree with UN Special Rapporteur Ben Emmerson QC: “there comes a point where patience runs out.” The patience of the sovereign people of this country may run out with the neocolonial dictates of foreigners and the servility of those Government leaders who made commitments in Geneva to punish through a Special Prosecutor’s Office, our armed forces which liberated us from fascist terrorism, reunited our country and brought us peace.