It’s Only An International Court By A ‘Hybrid’ Name

By N. Sathiya Moorthy

At the end of the day, the UNHRC probe report has left the Sri Lankan government with little choice but to reject it in so many ways – or, at best invite the ‘international community’ to re-negotiate the same. By declaring that the Government cannot have ‘international judges, prosecutors, lawyers and investigators’, Foreign Minister Mangala Samaraweera might have doused high-voltage domestic criticism, or at least deflected some of it on the UN, UNHRC and the rest of the international community – as was only to be expected under the circumstances that the probe report would have otherwise kicked off.

It’s too early to say that the new Government’s honeymoon with the international community is all but over, or its promised though not as much pronounced, policy of accommodating Tamil aspirations and expectations nearer home would remain as one, and nothing more. Yet, the trajectory that the UNHRC report suggested for Sri Lanka and the Sri Lankan Government has the inherent potential, least understood and/or acknowledged by the otherwise politicised approach of the probe team, which is well-tuned on into human rights concerns, and naturally so.

 

International criminal court

By recommending a ‘hybrid court’, the probe report in reality has proposed an ‘international criminal court’ on ‘war crimes’ and ‘accountability issues’, based and operating out of Sri Lanka – with Sri Lankan approvals and possibly based out of the country.  It’s nothing more, nothing else. Leaving nothing much to imagination and/or interpretation, the recommendations clearly state that for any future/further ‘domestic’ investigation and court processes to be (accepted as) credible, the country would have to amend existing criminal and evidence laws, or bring in new legislation, for granting civil sanction to international conventions and practices, before a ‘hybrid court’ could take up its assignment, if and when made.

In a way, the UN and the rest of the ‘international community’ have sought domestic clearance for ‘internationalising’ the ‘accountability’ investigations and court proceedings, as Sri Lanka is not a signatory to the Rome Statute – a point often made by the previous Rajapaksa regime. It remains to be seen how Prime Minister Ranil Wickremesinghe in particular would react to such proposals. As the Leader of the Opposition, he had claimed due credit for not signing the Statute when in power on an earlier occasion. Even a quick-read of the probe report would show that larger the issues, more complicated could the Sri Lankan Government’s position be forced to become.

Beyond the broader issues and solutions flagged by the report of the UN ‘Office of the High Commissioner for Human Rights – Investigations on Sri Lanka’ (OISL), mandated under the US-sponsored UNHRC resolutions in three successive years, particularly the last one in March 2014, the UN scheme has acknowledged the initiatives of the predecessor Rajapaksa regime, but without ‘acknowledging’ it all the same.  For every institution, either recommended by the probe report or promised by the Maithri-Ranil Government, through Foreign Minister Mangala Samaraweera in his UNHRC speech this time, there is one already existing in Sri Lanka. Though the Minister did not seem to have referred to them in his post-Report public statements, it is clear that even the ones proposed by him and his Government could not deviate much from them, both in form and content, intent and mandate.

True, the existing ones or the ones that have completed their work lacked ‘credibility’ in the eyes of the ‘international community’ (read: West). The Rajapaksa regime did not cover itself with glory by delaying such decisions until it was pushed to the wall at every turn. This did leave a bad taste and suspicions, if there had not been occasions or other reasons for any, to begin with. It’s this ‘credibility’ that has made the difference, with the change-of-government and two elections in eight months.

But the Maithri-Ranil team too could not have been expected to ignore ‘sovereignty issues’ that the Rajapaksa regime had flagged repeatedly to delay, if not always defeat, the West’s suggestions, proposals and demands. Minister Samaraweera has not referred to the ‘sovereignty’ issue since the publication of the report, but any pronounced lack of credibility in a nation’s system could end up getting countered only by such defence – basic or additional, as the case may be. Given that smaller nations, independent of the leadership in power, has only ‘sovereignty’ to assert and hedge, and that point has also been reached, any Government in Sri Lanka would feel disquiet and discomfort at any compromise, real or imaginary.

 

Over-politicised

The probe report, UNHRC chief Zeid Ra’ad Zeid Al-Hussein, and other UN spokespersons, starting with Secretary-General Ban Ki-moon, have all clearly over-politicised the issues in Sri Lankan, domestic terms, by repeatedly indicating that the Rajapaksa regime (alone) did not cooperate. Though the probe itself dated back to 2002, when the CBK-Wickremesinghe duo was sharing an uncomfortable cohabitation experience at the helm, the ‘credibility question’, from the text of the ‘probe report’, had not extended beyond the Rajapaksa regime (even going beyond the ‘ethnic war’), for whatever reason.

More of the kind could (have to) follow as and when a post-war, post-polls new-face Sri Lanka began addressing the OISL concerns in the coming days and weeks. Whether it would then stop with the Rajapaksa rule, or could end up extending either way to predecessors and successors in office is what the present duo needs to be worried about in the medium and long terms. The probe report can cut in many ways, and ‘international credibility’ alone would continue to remain the bench-mark.

 

Not easy to work on

The UN scheme has named no names, and has promised that it would not name names, in terms of the perpetrators of ‘horrific crimes’. It has thus spared also the name of LTTE chief Velupillai Prabhakaran even while apportioning at least a part of the ‘HR blames’ of every kind on his outfit, too.  Thus, even while seeming greater ‘accountability’ and responsibility on the Sri Lankan State and the players representing the State, the probe report tends to sweep – and possibly sweep aside at the same time — the HR LTTE’s liabilities with a broad brush, if there was one. There is nothing even remotely close to Prabhakaran’s  diabolic and decades-long scheme of ‘human shields’ – of the very people he have purportedly vowed to protect –  in global history, yet that too gets only a passing reference in the probe report.

This and the rest, according to the report and UN spokespersons, is for the ‘hybrid investigations’ to unravel. It’s a human rights investigation and not a criminal investigation, the report has said. The Government thus did not lose much time in under-lining the dichotomy of sorts in its early reaction.  If the initial reaction referred more to what the UNHRC and the OISL reports had to say about the ‘credibility’ of the political change-over, Minister Samaraweera has since clarified the Government’s position on ‘hybrid courts’ and the like.

It thus remains to be seen what final shape that the promised ‘consensus resolution’ would take between now and the week ahead, before the US and co-sponsors present one to the Geneva Council for vote. While the Government’s official reaction at the Council could run on the lines already indicated by Minister Samaraweera, a clearer picture would emerge only when the draft of the resolution became available. It would then be seen if the US is on the side of Sri Lanka, or if Sri Lanka is left to the side of ‘others’, whose help it would be forced to continue seeking. That could include Sri Lanka’s Indian neighbour, but may not be able to exclude China and Russia, which are also P-5 members with veto-power at the UNSC.

Despite Minister Samaraweera promising a South Africa-like Truth Commission and also an ‘office for missing persons’ in his initial speech at the UNHRC session this time, they are not ideas that are easy to work on and work with, in local conditions, as mandated by the ‘international community’ (read: West). The Government would have to convince itself first – and the rest, later — as to how different they would have to be from the likes of the Rajapaksa-appointed LLRC and the halfway-through Justice Maxwell Paranagama Commission on missing persons. If nothing else, every UN and international criticism of Sri Lanka/Rajapaksa regime, including the current UNHRC report, have made only positive references to the LLRC Recommendations, per se.

Going by news reports from the past, the Paranagama Commission is yet to receive any response – positive or otherwise — from western nations on repeated requests for help to identify Sri Lankan (Tamil) citizens (illegally) residing there, before it could arrive at a number for ‘missing persons’. Though not acknowledged in the UNHRC probe report, it is fairly well-known, more so to the host-governments, that illegal Tamil residents are in their midst, and so are a large number of ‘escapees’ from the end-of-war ‘IDP camps’, including those that their missions in Colombo had helped escape.

 

Back dating

As was to be expected, there can be no clarity in an academic-like report of the kind to provide details of events past and at times forgotten, even while it has found the need and relevance to name some episodes that were not connected with the ‘ethnic war’, but where the Rajapaksa regime was seen as being culpable. The UNHRC mandate and the base material provided to the probe team by the then UNHRC chief Navi Pillay, in a way, was directional and specific. But back-dating the probe to 2002, there can be both war and non-war related HR issues, where the CBK-Wickremesinghe duo could be held to question.

It would also remain to be seen how the back-dating of the probe’s time-period came to be fixed, for which no real explanation has been offered ever. If it all related to the ‘ethnic issue’ per se, then it should date back to the post-‘Sinhala Only’ 1957, anti-Tamil violence. If it’s to the near-immediate genesis of Tamil militancy, war and violence, then it should have begun with ‘Pogrom-‘83’.  Again, if the probe were to have covered all HR violations in Sri Lanka, it is unclear why the ‘anti-JVP’ army violence has been left out.

Many members of the present government, starting with President Sirisena, were members of the previous regime. Wherever the ‘collective responsibility’ of the Cabinet were to be the yard-stick for ‘fixing accountability’, there could be problems. It would not also take them to blame it all on the Rajapaksas, laying much of the responsibility at the door-step of the former President. If push came to shove, President Sirisena, both as a senior member of the Cabinet and also the Acting Defence Minister at the time of the ‘last battle’ and on earlier occasions, and then Army Commander, Field Marshal Sarath Fonseka, too cannot escape ‘accountability’ queries, if not charges, if push came to shove. Fonseka has repeatedly opposed ‘international probe’ of the kind, and has often taken personal responsibility some of the HR-controversial decisions.

There is also no reference whatsoever to the LTTE kind of violence, barring generalities. The OISL report speaks of fixing accountability and responsibility on people at the top, including commanders, but there is no mention on which among the survivors would culpability, shared or otherwise, be fixed when it came to the LTTE. It is unclear if the TNA as the moderate political voice of the Tamils now, and the LTTE at that time, would be called in to share ‘accountability’ just as there is an overt suggestion in the OISL report for the political leadership of the time to share culpability from the side of the Sri Lankan State and Government.

 

‘Conviction’ to ‘due attention’?

It’s sad and bad that the Rajapaksa leadership, even while negotiating an aborted political solution with the TNA, post-war, did not take the party into confidence on the ‘accountability’ probe. Not only did it result in lack of legitimacy and credibility on the Government’s initiative – voluntary or forced – it also ended up challenging the credibility, though not legitimacy, of the TNA, too, in the eyes of the vociferous sections of the Tamil audience, overseas. There is nothing to suggest that the present government has done it, either, even while they continue to address the concerns of the ‘international community’, to which alone the TNA too keeps going – with or without the Indian neighbour being tagged along, at times also as an after-thought.

Just ahead of the UN and the OISL probe report recommending a ‘hybrid court’, TNA’s Sumanthiran had spoken about the need for having ‘international judges’ on any domestic inquiry panel, as promised by Minister Samaraweera in his UNHRC speech. It need not mean that the OISL report too had (been) leaked, like the ‘Darusman report’ before it. It could well have reference to the host of parallel ‘civil society’ and academic studies, some of which had mentioned ‘hybrid courts’, either in the passing or in great detail.

The pre-report ‘conviction’ with which Minister Samaraweera had said Sri Lanka was approaching the UNHRC sessions was appreciably lacking in the Government’s initial post-publication prosaic promise to give ‘due attention’ to the report. Minister Samaraweera has since declared that they would have no outside judges and investigators, but would still accept inputs from outsiders.

Again, an area where the Rajapaksa regime, did too little, too late – but the crux of the Sri Lankan State approach remains. It thus remains to be seen how the Government intends proceeding with the recommendations, and what the nation’s polity and society, Parliament and higher judiciary would have to say in the matter, considering that the report is a condemnation not only of individuals and institutions, but also of the Sri Lankan systems and schemes as a whole.

Sumanthiran did give a qualified welcome to Minister Samaraweera’s UNHRC announcements on Truth Commission and all, indicating that the taste of the pudding was still in the eating. Going beyond the TNA and the Tamils, it also remains to be seen if the very mention of attacks on Muslims and Christians in Sri Lanka when President Rajapaksa was in power – which have however been mentioned in the probe report — would help consolidate ‘national opinion’ in favour of the OISL report.

As the back-dating of the probe, for instances, stops at 2002, there could have been no reference the LTTE’s infamous 1990 attacks on Muslims in the North and the East.  It is by no way a justification for what the BBS had perpetrated – and got away with — in the post-war, post-Census weeks and months, but it remains to be seen how the new ‘Sinhala-majority’ dispensation handles the core and hidden issues from the time – though they too cannot be a part of the current report, unless it had been futuristic, too.

 

Hearts and minds…

Even otherwise, any permanent solution to the ‘ethnic issue’, power-devolution, et al, has to flow out of a negotiated process among Sri Lanka’s domestic stake-holders. Meeting with Indian counterpart Narendra Modi on his first overseas outing after coming to power in January – possibly his longest unbroken stay in Sri Lanka in recent years – PM Wickremesinghe has promised a solution within the nation’s Constitution, and through a new Constitution at that.

How it’s going to be different from President Rajapaksa’s insistence on an all-acceptable, all-party solution arrived at through a parliamentary select group remains to be seen, too. In the process, the Sirisena-Wickremesinghe duo could anticipate problems and protests from within their ‘National Government’ and alliance, if not between them, too. After all, both would still be suffering from the long hang-over of the JRJ-Premadasa duel on the Indo-Sri Lanka Accord and 13-A on the one hand, and the cohabitation blues during the CBK-Wickremesinghe innings, particularly relating to the Norwegian peace-facilitation of the times.

TNA’s Sumanthiran also welcomed PM Wickremesinghe reiteration of what essentially has been a Sri Lankan State/Sinhala polity’s position. However, he too has religiously repeated the Tamils’ known position that no acceptable solution could be found under a ‘unitary State’ model, which is what Sri Lanka today is and which is what any post-19-A abolition/dilution of the Executive Presidency would still part entail. The TNA too should hit the Tamil political iron when it is electorally hot, and bring around ‘Tamil nationalists’ outside its perimeter, if it were not to yield to their own kind of internal and ‘international’ pressures, in the future. There is no meaning blaming the ‘competitive Sinhala nationalist politics’, when the TNA as the overwhelmingly supported Tamil leadership could not achieve unanimity/unity from within, starting now with NPC Chief Minister, Justice C V Wigneswaran, and those outside the party-fold.

Despite the unanimous national ‘desire’ to do away with the Executive Presidency, it is unclear if there would be near-consensus on power-devolution, where none from the ‘Sinhala South’ has displayed any appetite or readiness, other than couching it in ‘constitutional’ terms. Truth be told, there is greater acceptance on Police and Land powers for Provinces among non-political sections of the Sinhala polity and the Sri Lankan structure than from within – parties and leaderships, notwithstanding. For now, the TNA too has begun well by co-opting left-leaning, ‘Sinhala-Buddhist nationalist’ JVP for sharing the ‘Opposition’ honours in the new Parliament by conferring the Chief Whip’s status on the party.  Now in the ‘Leader of the Opposition’ post, the TNA in particular Tamils should exploit the ‘Sinhala-given’ opportunity to reach out to the hearts and minds of the Sinhala population in ‘deep South’ and elsewhere, even if belatedly – returning home from the international arena, where they too do not belong, either. The Sinhala polity too cannot lag behind.

Independent of the persona involved and the polity in control, the Sri Lankan State and the Tamil leadership have to both overcome the mutual suspicions that date back to Independence and beyond. The irony of the current Sri Lankan situation is also that the players from every side – either at the centre-stage or sidelined, once, or in one way or more – have been at it personally, and almost continually, for long. Their past dictates their present, and impedes the future.

In the final analysis, the Government (whoever is in power, or out of it) would want to divide the nation even more than at the time of war and terrorism, that too in the name of building post-war reconciliation. For instance, as the South Africans themselves are not tired of pointing out, theirs is not a ‘one-size-fits-all’ solution. Even post-War European models of ‘accountability’ may not fit the Sri Lankan situation.

The solution may lie elsewhere – and within. So are the tools. Externalising solutions for problems that are not only internal but have also been internalised, can be counter-productive in every which way. After all, the proponents of the present set of solutions for Sri Lanka’s problems of ‘accountability’ and ‘power-devolution’, et al, had not thought about the ‘Day After’, wherever and whenever they had been involved/engaged, by invitation or otherwise – particularly visibly so in this era after the ‘Second World War’ and more so after the end of the ‘Cold War’.

 

(The writer is Director, Chennai Chapter of the Observer Research Foundation, the multi-disciplinary Indian public-policy think-tank, headquartered in New Delhi. email: sathiyam54@gmail.com)