By Chandra Jayaratne –

Chandra Jayaratne

Issues of Truth and Accountability; the last Stages of the War in Sri Lanka – Narrative iii – MARGA & CHA Colloquium; a Private Sector Perspective

The “Third Narrative” reviewed at the Colloquium presents an alternative narrative, of the events of the last stages of the war, and has been developed as a response to the UNHRC resolution of 2014. This is in the wake of the purported conflicting and contradictory accounts of the last stages of the war in Sri Lanka. These varying accounts have come from the Defense Authorities/ Army and the Government of Sri Lanka, I-NGO’s, University Teachers for Human Rights, Academics, Documentaries, Film Clips and Publications by Individuals, ex-Soldiers and Combatants, Diaspora Groups, Civil Society Groups, Activists and Collectives in and Outside Sri Lanka and presentations by the International Community, the UN Secretary General’s panel of experts, and the LLRC.

This presentation is made following an objective analysis looking forward at the socio economic consequences to flow from the processes now in progress. It is based on a private sector perspective. It has the sole focus of realizing the common future goals hopefully shared by all of the alternative view presenters. It further aims to assure that the truth and reconciliation will emerge, along with justice, equity, fairness, upholding the legitimate interests of all victims, the decesed and other local actors including the soldiers who sacrificed their lives and limb in the process of the military operations. It is also developed with an aim to restore the lives and livelihoods of those who suffered on both sides of the war theatre and lead to peace, reconciliation, reparation, restoration lives and livelihoods and alleviate the grievances of those innocent victims and allow loved ones to come to terms and closure with their dead, missing and disappeared family members and friends.

The end goal is to ensure sustainable growth and prosperity of the nation and its people, with peace, harmony, good international relations and socio-economic development, equitably benefitting all citizens. This goal has resonance with the private sector’s primary core value of placing the interests of the nation and its people first.

The current path and actions of the Government in addressing the international challenges it faces on the accountability for the last stages of the war and its commitments / obligations in terms of international human rights and humanitarian laws, appears to be inimical to the aforesaid core interests and values. These actions appear to be based on an aggressive, arrogant and self righteous stance that ignores the committed to obligations and desired foreign policy framework for effective international relations in the globalized world we live in today.

UN HRC process led international inquiry is also unlikely to support the common and end goals outlined earlier fully and in a timely manner. The victims and impacted families are unlikely to receive direct benefits from such a process in the short to medium term. Justice for the victims by way of restorative justice or retributive justice cannot also be expected delivered in the short to medium term.

With the Sri Lanka government’s stand of ignoring the UN HRC Resolution of 2014 and taking no part in the inquiry initiated by the Office of the UN High Commissioner for Human Rights, and in fact not allowing the inquiry panel even to visit Sri Lanka and further appealing to other nations to follow suit will lead to an acrimonious situation to the ultimate detriment of the nation and its people.

The UN Inquiry panel will, irrespective of the stand of the Government of Sri Lanka, continue with its tasks and have planned to receive submissions, hear and gather evidence in designated countries. The Inquiry team will engage in this task, under the guidance of the panel of international advisors recognized globally for their expertise and integrity. UNHRC team will provide an oral brief to the UN HRC during the September session and submit its final report to the March session of the UNHRC in 2015. Thus it will be an exparte inquiry, where Sri Lanka has forfeited an opportunity to present, its voice and advocacy, along with the presentation of any available contradictory evidence. Thus the presentations of the Government and the armed services will not be made available to the inquiry panel, in order to clarify, defend and raise objections to the evidence and submissions before the panel. The opposing views, evidence and negative presentations by other interested parties will most likely be received by the panel, irrespective of the stand of the Government of Sri Lanka. The inquiry process will document these and will guide the outcomes of the inquiry. Such evidence will remain available for access in the years to come, along with the final report to be presented in March 2015.

In the event the final report of the panel is inimical to the long term interests of Sri Lanka, Sri Lanka’s international image and international relations will be negatively impacted. In addition the nation and the people may also be negatively impacted, along with any named parties against whom the inquiry findings and strictures are made and classified as parties accused of violation of international law and guilty of offences and crimes against humanity.

In such an eventuality the private sector assesses that the under noted economic risks may crystallize, most of them dependent on the contents, gravity and the weight of the purported evidence listed in the report, the findings and recommendations of next steps and any suggested punitive measures highlighted;

1. Banks and finance houses may impose stipulations requiring all documentary credits to be ‘confirmed’ by acceptable first class, designated country, international banks with global credit ratings
2. Down grading of Country risks and associated increases in country specific risk premiums. These actions will impact on cost competitiveness and deter expansion of  import export trade transactions
3. Inclusion of “Sanctions and Boycott” clauses in insurance, loan and credit agreements and import export  trade and credit documentation
4. Foreign Investors, and Commercial entities entering with trepidation in to long term trade, service and technology transfer arrangements and agreements with Sri Lankan business
5. Slowing down of foreign direct investments, at a time high growth targets require significant FDI flows, especially in the wake of domestic savings being inadequate to meet supportive investment targets
6. Insecurity led slowing down, significant disinvestment and repatriation of capital from  securities listed in the Colombo Stock Exchange
7. International bond holders of Sri Lanka Government Securities (Government Bonds and Treasury Bills) discounting bills in the secondary markets prior to maturity and repatriating capital. If a significant portion of the government securities in issue at present are discounted, the foreign reserves of the country can be significantly eroded and lead to foreign currency reserves available to support future imports being drastically reduced. Such an eventuality can even lead to foreign exchange restrictions being imposed to avert a potential balance of payments crisis.
8. If the UNHRC report were to make specific negative references and raise valid charges accusing the state and / or high officials of continuing post war ethno religious persecution, discrimination and targeting of minorities, (especially the Muslim Community), it may trigger a slowing down of employment opportunities for Sri Lankan expatriates in Middle Eastern Countries and even give rise to key trade embargos and boycotts. These actions will significantly impact on the balance of trade and balance of payments of the country.
9. If charges of genocide, war crimes, crimes against humanity and continuing persecution of minorities are raised in the report and accusations are leveled against leaders in governance and the armed services, Diaspora groups and other parties, especially those belligerent groups in South India, EU, USA, Canada, Britain, Australia and some middle eastern countries, ( ie. those who have led the voices of advocacy and even legal challenges against the Government) who are against the actions of the authorities, may launch effective advertising and promotional campaigns in key export destinations, calling for the boycott of imports and services Sri Lanka and travel to the Country. These campaigns may be similar to previously seen “Boycott goods and services from blood stained nation”. Such campaigns, where successfully implemented, could have disastrous economic consequences. Such campaigns and boycott actions can slow down the growth of tourism, tea, apparel, gems& jewelry, spices, ITC, entrepot and shipping/aviation sectors of Sri Lanka.
10. As a consequence of 9 above the financial media, risk assessors/managers, analysts and rating agencies may impose amber signals in their communications and reports dealing with Sri Lanka
11. As a consequence of 9 above, trade chambers, shipping/aviation, transportation and logistics support service entities and customs, quarantine, inspection and quality control entities in import / export destinations, may discriminate, slow down, impose added conditions and even boycott services support, so essential for effective trade and services transactions.
12. If American and European Banks, finance houses and global insurers/re-insurers down grade the country risks and join even in a marginal way in supporting the call of opposing parties as stated in 9 above, this could have disastrous consequences for trade and services credit, documentation, payments and settlements.
13. With a majority of Sri Lanka’s trade transactions being channeled through US based Clearing Banks and transacted in dollars, ant slowing down, boycotts and added conditionality by such Banks will have significantly negative impact on business.
14.  As a consequence of 9 above, visas and travel restrictions may be imposed not only on those accused persons, but also on trade delegations and business persons visiting Sri Lanka as well as overseas.
15.  There may even be the imposition of bi-lateral country sanctions and boycotts
16.  The PR image of Sri Lanka as a destination for trade, commerce, services, investment and travel could be tarnished, with long term adverse consequences and possibly lead to classification of Sri Lanka marginally above some of the failed states, in investment, trade and travel friendly states listing international indices.

With such risks as those listed above, looming overhead in the external environment is it the time today to;

1. Take the position that the UN HCR has neither mandate nor a moral right to investigate the human rights issues of the last stages of the war?
2. Ignore and boycott with arrogance and articulated acrimonious statements, the UN HRC process, already initiated and proceeding for targeted completion
3. Not defend the Country and the Armed Services by effective diplomacy, advocacy and raising valid objections to unacceptable evidence and submissions before the panel
4. By words spoken and by actions taken deny /discourage access to the panel and not allow them entry to Sri Lanka, which may further give rise to negative perceptions
5. Argue that the UN HRC process is illegal and canvass international support to deny access and space for the panel to operate in other countries
6. Argue about sovereignty of Sri Lanka being violated
7. To highlight double standards of those leading and supporting the UN HRC Process
8. To allow an exparte trial, listing of unchallenged evidence and publication of an uncontested report
9. To remain silent on questions as to why some LTTE leaders are entertained in high political posts and given freedom with protection and unhindered access
10. Deny to family members open access to records, centres of detention and information on processes to confirm the dead and find the disappeared
11. To not effectively support the process of resettlement of  Muslims who were chased out by the LTTE many years ago, and
12. To place restrictions on free access to religious sites, and cemeteries but allow new religious and sacred sites to be established for the majority community
13. To ignore the charges of not speedily supporting processes for reparation, restoration of assets, gold, jewelry and bank holdings of families taken over by the LTTE and later recovered by the Armed services and the State
14. To not support the processes for effective closure by those with family members grieving over dead, and disappeared
15. To not to provide for truth and justice to be facilitated to the satisfaction of the impacted families
16. To not provide for psycho social support and long term care for the war injured and persons with shrapnel yet implanted in their bodies
17. To not address the purported allegations of land grabs, expanding high security zones, militarization, civilian administration being dissolved and replaced by military administration, and
18. To ignore charges of failure to provide essential resettlement options for the  displaced, and ignore the need for establishing livelihood options, housing , water and sanitation  for war impacted families
19. To delay the implementation of an effective power devolution process in the North
20.  To fail to engage in resolving the ethnic crisis by classifying the conflict as terrorism or a language issue
21.  To not effectively engage with the political groups that have gained due recognition following an election in the Northern Province
22.  To not have in place an effective long term programmes for investment and employment generation, and
23. To not have in place an effective process for rapid restoration of education, training and empowerment, health and in dealing with women’s issues, especially of war widows and single women headed households
24. To not have in place an effective process for repatriation back to Sri Lanka of those living in camps in India and displaced persons in other parts of the island wanting to return to the North
25.  Failure to effectively and comprehensively deal with issues raised by the LLRC to be addressed by specific independent investigations as well as its general and specific other recommendations
26. The need to address some of the truth and justice issues raised by the civil society activists and organizations, including issues connected with extra judicial killings, rule of law failures, continuing post war ethno religious hate speech, incidents targeting segments of society and minorities, some of which are openly created by identified members of society, who freely participate in such actions with impunity.
27. To engage the Services of professional PR firms at significant costs to canvas and influence opinion leaders /decision makers, whilst ignoring the need to actively participate in the international inquiry process

Further is this the time for an “Alternative Narrative” from high Intellectual Civil Society Groups;

1. Where the conflicting and contradictory previous narratives are highlighted
2.  Where the unfortunate and unacceptable procedures driving the previous narratives are highlighted
3. To  define an acceptable definition of a ‘Combatant’, a ‘Terrorist’, a ‘Civilian’, ‘ civilian population’,  ‘take direct part in hostilities’ and a ‘No Fire Zone’ in engaging in the number game
4. To argue on the numbers dead or disappeared in the war against terror, the last stages of the war, once the surrender process commenced and after the war effectively ended with the decimation of the LTTE Terrorists
5. To reflect how the international community had not at any stage contested the strategy leading to the operation to defeat the LTTE and to liberate the land and administration illegally taken over by the LTTE.
6. To highlight how the international community remained silent in the wake of the eastern province liberation war, (ie after Mavil Aru) and even provided thereafter tactical and intelligence support and even at times access to necessary military infrastructure and thereafter post the completion of the war, change their attitudes on the last stages of the war.
7. To point out the serious flaws, the validity of the evidence and material used to support the findings in the UN panel of Experts and IPEC reports.
8. To challenge the views opposing the validity of the objectives/planned intent  of the government and armed services in conducting operations in the Northern theatre in the last stages with the intent of rescuing the civilian hostages, fought on the lines of a humanitarian operation , and classify it not as a rescue operation aimed at minimizing civilian casualties,
9. To question the role of the NGO’s who operated in the Northern front and highlight that evidence dictates that in fact they aided the LTTE and made available tactical material and support to them in waging war,
10. To question the methodology of determining and the specific numbers of dead and disappeared civilian (casualties in excess of 40,000).
11. Highlight the failure to recognize the conditions created by the LTTE in the last stages of the war, that led to the outcomes and call to examine the war crimes created by the LTTE
12. To question the validity of charges of indiscriminate and excessive bombing and targeting of hospitals and no fire zones, without tracking the origins of and sources of intentional acts of the LTTE that preceded and necessitated such action
13.   To charge that the panels of under valuing the beneficial role of the armed forces in rescuing civilians, receiving IDP’s and surrendering combatants and humane treatment and rehabilitation efforts that followed
14. Highlight that the LLRC did not find valid the allegations of large scale torture rape and sexual violence
15. Stress that the POE report as being a prosecutors brief on war crimes of the Government and armed services
16. Contest the evidence connected with the allegation of intentional denial of food and medicines to civilians trapped in “enemy Territory”
17. Point out the failure of the panels to recognize how the war was fought by the LTTE, the atrocities and accountability of the LTTE , the accountability of the International Community , UN and its agencies
18. Point out the inadequacy of a genuine and credible process of assessments to determine the proportionality of the Government’s military action
19. Point out the failure to give due emphasis to the LTTE actions in preventing civilians from leaving the conflict zones with the creation of no fire zones
20.  Canvass the need for changes in IHL, IHRL and R2P doctrine in the face of tactics and strategies adopted by the LTTE

By turning to what the Buddha taught and the Emperor Asoka’s Edicts, is the strategy of the State and Civil Society in line with what the Thathagatha preached and what ancient emperors practiced, especially;

1. “Nahi Verani Verani” as articulated by Sri Lanka post World War ii-“ Hatreds never cease through hatred in this world; through love alone they cease. This is an eternal law
2. Dammapada Verse 223; Conquer anger with love, Conquer evil with good, Conquer stinginess with giving and conquer lies with the truth.
3. In the wake of the enmity between the Sakhya and Kholi over river water sharing, the Buddha preached “Value life more than Water” and placed a message that looking beyond the proximate cause and immediate challenges and looking for the cause of the conflict and focusing on the bigger picture will bring lasting beneficial results.

In the wake of above and the current strategies not delivering the desired objectives and end goals , can a new path and a strategy be charted by leaders of society caring for the sustainable future of this nation and people, move forward to actively canvass and seek global leaders like the Dalai Lama, Desmond Tutu, Nobel laureate Amarthya Sen and Abdul Kalam along with Justice Weeramantry to bring together all stakeholder, victims, complainants, representatives of Diaspora, NGO/I-NGO representatives, UN/ UNHRC and the  mediate over grievances, accountability issues , reconciliation options, restorative/retributive justice processes required and agree a common non acrimonious processes and find an alternative path to assure what was articulated as objectives at the beginning of this paper.