Mahinda Samarasinghe, Sri-Lankan government’s special envoy to the UNHRC while addressing the High Level Segment of 19th Session of the UNHRC at Geneva on 27th February 2012 made a Machiavellian request from the audience.
He asked the world body to accept the means adopted during the war although it was laden with war crimes, as the end was a good one-defeat of terrorism, and to allow his government proceed with reconciliation. This might had been adoptable in 15 century renaissance Italy. Machiavelli’s controversial political theory is what we call today as “ends justify the means” in politics. In essence he meant the monarch may sometimes be excused for performing acts of violence and deception that would be ethically indefensible in private life. As an extension of this principle violence may be necessary for the successful transfer of power and introduction of new legal institutions; force may be used to eliminate political rivals, to coerce resistant populations, and to purge previous rulers who will inevitably attempt to regain their power.
Unfortunately for the special envoy, in the 21 century when the universal human rights principles are deeply entrenched fully in all 194 UN member countries, his plea for impunity over the genocide of Tamils in May 2009 may be an anathema.
The main focus of his speech was to request the forty seven (47) UNHRC members to drop any censure motion brought against Sri-Lanka for human rights violation, war crimes and genocide during the war against the LTTE in 2008/2009 and to allow his government to carry on with ‘reconciliation and restoration of normality and productive civilian life’ as recommended in their LLRC report. He was praising his country’s Sinhala LLRC report, that was characterised as flawed in many respect by human rights activists, and at the same did not give any credit to the UN’s Panel Of Expert (POE) report on accountability in Sri-Lanka of 31 March 2011. This report was praised and well received by the UN member countries.
Instead he criticised POE report as inferior to the LLRC report. I quote from his ill delivered speech “This was quite different to the Secretary-General’s Advisory Panel which held closed door hearings with unnamed witnesses who were guaranteed 20 years anonymity to secure their statements. This meant that the testimony could not be verified or tested for its probative value. The LLRC Report, on the other hand, places before us material of the basis on which the Commissioners arrived at their conclusions, which are substantive and verifiable”.
The most negative aspect of the LLRC is that the person who appointed it was the President himself – the prime culprit of alleged war crimes. He got former government servants like the Attorney general to study the matter without probing any crimes with respect to the war, but to collect lessons from looking into a limited period of the conflict. The remit was curbed or restrained. Many INGOs refused to come before the LLRC for the simple reason that the commission failed to meet criteria needed for such a commission to be credible to contribute to lasting reconciliation or legal accountability for alleged war crimes and genocide.
It was well known in the Tamil circles that repression and intimidation were used against Tamils who were victims of war crime from going before the LLRC. There was no victim protection and only those who gave favourable evidence to the government or not so harmful evidence was allowed to go before the commission. The LLRC did not visit the last battle ground where 40000 civilians met their genocide, Mullivaikal, to see for themselves the site bombed by the army. These sites were photographed by US satellite during the war and given wide publicity in the press even though the Sinhalese carried out this genocide in camera. For this reason the world media called it a “war without witnesses” and derogatorily, “blood bath on the beeches”.
The noteworthy feature of the POE was that it was appointed by the UN Secretary General and had better education and credentials than the special envoy himself. They have life long experience in HR work and investigations of violation of war laws. The UN Panel Report was independent. The members are from international community. Objective evidence was collected in a free and open manner without any sort of security personnel surrounding the witnesses. The presentation of the report was advisory in manner. It was written to help resolving the conflict and war on the basis of truth, justice and accountability.
The unreasonable critique of the POE report by the special envoy shows that Sinhalese politicians as a race, who are found in Sri-Lanka only, lack diplomacy to address world forum like the UN.
The criticism levelled against the report by Mr Samarasinghe was challenged by the UN’s POE, Marzuki Darusman, Steven Ratner and Ms Yasmin Sooka on 2 March in the New York Times opinion page thus “In our report, we found credible evidence that both sides had systematically flouted the laws of war, leading to as many as 40,000 deaths — many multiples more than caused by the strife in Libya or Syria. The bulk of that total was attributable to deliberate, indiscriminate, or disproportionate governmental attacks on civilians, through massive shelling and aerial bombardment, including on clearly marked hospitals. Rather than tackling these allegations head-on through a truth commission or criminal investigations, Sri Lanka created a “Lessons Learnt and Reconciliation Commission,” whose mandate, composition and methods all cast serious doubt on its willingness to uncover what really happened in those fateful months. When the commission issued its final report last November, it ignored or played down our report’s conclusions and characterized civilian deaths as stemming from the army’s response to Tamil Tiger shelling or cross-fire — as sporadic, exceptional and mostly inevitable in the heat of battle. “When it came time to proposing next steps for the government, it called for investigations by the same entities — the army and the attorney general — who have a track record of ignoring governmental abuses for decades. The report had some welcome elements, too. It recognized some of the root causes of the war, as well as the responsibility of both the government and Tigers for civilian casualties. And it endorsed our view that Sri Lanka had a duty to provide truth, justice and reparations to victims; release detainees; and protect the state’s besieged journalists. “Yet the fact is that numerous recommendations of prior commissions of inquiry have not been implemented by the government. Given Sri Lanka’s unwillingness to take concrete steps, the best way to get to the truth is for the council to create an independent investigative body to determine the facts and identify those responsible, as we recommended in our report”.
Looking at Mr Samarasinghe’s claim of ‘reconciliation and restoration of normality’ we could say it was only just eyewash. These reconciliation schemes and programmes are unmonitored by the aggrieved parties’ representatives (Tamil MPs and NGOs) or fully substantiated to the satisfaction of responsible INGOs. Most of what had been carried out as infrastructure development was mere window dressings. The vital need of the forcibly displaced citizens of Vanni had not been dealt with promptly and appropriately. For example out of more than 200000 homes wantonly destroyed by Sri-lankan forces in Vanni only few homes had been rebuilt or new homes constructed. The pace of reconstruction is slower than that of a snail.
Mr Samarasinghe said that he was honoured and privileged to be able to once again share with the august body Sri Lanka ’s experience in promoting and protecting the human rights of its people, in accordance with universally accepted standards. The author of this article wish to pin point that the dignified assembly should be aware the inconsistency of the minister concerning the number of war casualties he provided first and subsequently. Immediately after the war, in order to get the support of the UNHRC members for the congratulatory motion in the 2009 human rights council meeting he said firmly without batting the eyelid that the casualties in the war was zero. The UNHRC council accepted it at face value. But after public out cry from the Tamil Diaspora and NGOs and INGOs and some countries that cared for human rights strongly the Sri-Lankan government had slowly divulged that the casualty figure would be 9000 civilians. This sort of understatement from a minister to get support to win their case in a world assembly and then to come out with the truth later is definite misleading.
Unfortunately, the Tamils in their Traditional Homeland (TH) then could not give their views openly to the LLRC on the number massacred in Mullivaikal as they would be terrorised by Sinhala security forces who still keep the Tamils as second class citizens that cannot exercise their civil rights freely and democratically. Military cantonment to monitor the Tamils is being set up in the TH (South Asia Forum for Human Rights-SriLanka current situation). A case in point is that of a British para- medic Miss Thamil Vani Gnanakumar who was caught up in the war in Mullivaikal along with her Vanni relatives. When she gave an interview to the BBC and Guardian about the atrocities of the war after returning to the UK on release form the IDP camps on UK government’s intervention, her relatives in the IDP camps were harassed and intimidated of reprisals if Thamil Vani continued her severe attack on the government HR violations and war crimes. This was widely reported in the press worldwide.
According to Miriam A Young, a human rights worker and Director of the US Counsel on Sri Lanka, all these political steps were taken by the Sinhala government not on its own initiative but only due to external pressure. I reproduce what she wrote in web endgenocide.org “International pressure on Sri Lanka’s leaders has resulted in the few small steps the government has taken to date to address the critical issues of justice and reconciliation. Until they demonstrate genuine commitment through concrete actions of their own, that pressure must continue”. It is pertinent to point out here that the LLRC was hurriedly appointed by Mahindas Rajapkse, the presidet only after UN SG Ban Ki Mun appointed the POE to produce a report on war crimes. MR feared that if the POE report were to be presented to the UN he may have to face an ICC inquiry and to stall that danger he appointed his LLRC.
MR’s envoy’s deception harangue continued in the UNHRC under the privilege of a UN member country for another fifteen minutes. He meticulously avoided using the word war crimes and ICC inquiry as it was that issue that Sri-Lanka was avoiding from the time POE report made public. The world knows for sure such an ICC inquiry would incriminate the president. The UN member countries should advice the Sri-Lankan Sinhalese government that they should own up for the HR violations and war crimes committed in front of the world in view of the US satellite. Crimes like genocide, even if committed against a group within one country, are a concern for all humanity.
Permissibility of impunity/amnesties in international law for genocide, crimes against humanity and war crimes leads to transgression of UN genocide laws by other countries. Ex SG of the UN Mr Koffie Annan said while addressing End Immpunity Organisation "We will do our part to see through till the end. We ask you…to do yours in our struggle to ensure that no ruler, no State, no junta and no army anywhere can abuse human rights with impunity. Only then will the innocents of distant wars and conflicts know that they, too, may sleep under the cover of justice; that they, too, have rights, and those who violate those rights will be punished." (Kofi Annan, 1999).
In order to divert the attention from the issue Samarasinghe went on describing how his government was taking various steps under the LLRC recommendations to resettle the people it drove out wholesale from their homes in 2008-2009. He listed his government performance viz:
1 In the 2 years and 9 months since the end of the armed conflict the rollback and eventual abolition of emergency regulations in August 2011, in tandem with the gradual improvement in the country’s law and order situation in the post-conflict phase. HRW contradicted this claim. It said “In August the government allowed emergency regulations in place for nearly three decades to lapse, but overbroad detention powers remained in place under other laws and new regulations. Several thousand detainees continue to be held without trial, in violation of international law”.
2 Economic development, rehabilitation and resettlement and livelihood development in addition to addressing the need to provide a sense of finality among those who suffered trauma and the loss of loved ones had been set in motion . He also added that the Government was firmly resolved to ensure that all those who had been dispossessed of their lands, were afforded the opportunity to return to the lands they once owned. These claims had been refuted by Todd Wassel in FMReview 33.
3 Mr Samarasinghe called the Channel 4 War Crime Exposure video as ‘controversial’ for no reason when the whole world including the country down under was receptive to its plea. Having belittled it he said that an Inquiry has been specifically mandated to ascertain whether any member of the armed forces was involved in the events depicted, authentic or otherwise and to recommend the measures to be taken. This new probe ordered was apparently after their failed attempt to counter Chanel 4 Video with their own version of channel 4
4 The 595 LTTE child soldiers who were in Government custody had been rehabilitated under a UNICEF-assisted programme without setting in motion any criminal procedure, and returned to their families within one year. Several have successfully passed their Advanced Level examination last year, some having even gained entry to undergraduate programmes. There were popular agitation against the armed forces conducting this rehabilitation work because the army was involved in rapes and murder of Tamil women in all walks of life. There are 89000 widows in Tamil Eelam now after the war. Most of the widowhood was conferred on these women by the armed forces. The Tamil Diaspora and the Tamils of the TH wanted international team of sociologists, psychologists, psychiatrist and human rights workers to visit these war victims but this was flatly refused by the Sinhala government alleging that they will work against the government and for the Tamils.
In this juncture I wish to add that all Presidents and Prime Ministers after independence in 1948 from Britain were Sinhalese and they had a hegemonic attitude towards the Tamils. By virtue of their majority status, 75% of the population is Sinhalese and the Tamils constitute 15-18% and as the voters cast their ballots on communal lines. Hence democratic principle does not work as it should be, the party that will take the reigns of government will always be Sinhalese. I give below the views of some past head of government re the minority Tamils.
In a speech given in 1939, late Mr D. S. Senanayake, considered to be ‘father of the nation’, and who in 1948 would become the first Sinhala prime minister after independence said ‘We are one blood and one nation. We are a chosen people. The Buddha said that his religion would last 5500 years. That means that we, as the custodians of that religion, shall last long’’ ( Mr Senanayake was referring to the Sinhalese when he said ‘We’)
As a Sinhala prime minister from the Sri-Lanka Freedom Party who came to power in 1956, and the sole one who declared Sinhala language the only official language of the country, late Mr SW.R.D. Bandaranaike made the following statement in 1939: ‘I am prepared to sacrifice my life for the sake of my community, the Sinhalese. If anybody were to try to hinder our progress, I am determined to see that he is taught a lesson he will never forget’
The first executive president of Sri Lanka, J. R. Jayawardene (1978-1988), stated: "I am not worried about the opinion of the Jaffna people... now we cannot think of them, not about their lives or their opinion... the more you put pressure in the north, the happier the Sinhala people will be here... Really if I starve the Tamils out, the Sinhala people will be happy." (Jaffna people are Tamils by ethnicity-the largest minority)
President D B Wijetunge who led the Sri-Lankan government in 80s and early 90s ridiculed the Tamils thus “Minorities are like creepers clinging to the Sinhala tree.”.
Mrs Chandrika Kumaranatunga while on a trip to South Africa said in a television interview: “They [Tamils] want a separate state – a minority community which is not the original people of the country...”According to Dr Brian Senivirutne, a cardiologist and human rights activist Chandika father had Tamil lineage. Therefore how can she be indigenous (original) to Sri-lanka if the Tamils are not?
Mahinda Rajapakse, the president said “There are no minority or majority communities in Sri Lanka today. There are only patriots and traitors.”
By these words he had violated the UNHRC Declaration on the Rights of Indegenous Peoples that was adopted in 2006. He refuses to accept that a minority Tamil group existed in the TH. The definition of a minority in international law is given by a former special rapporteur of the UN, Mr Francesco Capotorti in 1977 as a group which is numerically inferior to the rest of the population of a state and in a non dominant position, whose members possess ethnic, religious, or linguistic characteristics which differ from those of the rest of the population, and who is only implicitly maintain a state of solidarity directed towards preserving their culture, tradition, religion or language. Tamils are such a group.
Therefore it could be visualized that no Sinhalese head of government would ever give political rights to the Tamils without foreign intervention. Now is the time to give Tamils freedom after the genocide of tamils in May 2009 in Mullivaikal.
5 They had already extended an invitation to the High Commissioner for Human Rights to visit Sri Lanka . He emphasised that that there was already a senior advisor of the High Commissioner’s office working in Sri Lanka from as far back as 2005. This invitation to UNCHR Ms Pillai is irrelevant to extricate from war crimes as these are unpardonable crimes in the UN. Even if she decides to visit I am sure she will be treated like her predecessor in office Ms Lois Arbour who were chaperoned all the time without allowing her to see the plight of the refugee by herself.
In summing up I would add that the Dublin PP Tribunal upheld that international humanitarian law was promulgated to protect citizens from their state and lays emphasis on the culpability of the GoSL. It also exposed the complicity of the USA/UK/EU in supporting the GoSL. The staggering numbers of civilian victims, 40000 in the last day of the war in 18 May 2009 itself were not only individuals possessing individual rights, but also a distinct group of people with a particular collective identity, who possessed collective rights as such. This tribunal also concluded that war crimes and crimes against humanity were committed by the warring parties. The 19 session of the UNHRC should pass a resolution that an ICC inquiry should be held against the warring parties in the last war notwithstanding what Mr Samarasinghe told to mislead the assembly . As Edmund Burke said about 300 years ago “All that is necessary for the triumph of evil is that good men do nothing”. Good men in the UN should act and act without hesitation to bring to book the war criminals of Sri-Lanka to justice.