Between Accountability And Self-Determination

by N Sathiya Moorthy

At a recent news conference, former President Chandrika Bandaranaike-Kumaratunga, or CBK for short, now heading the post-polls Office for National Unity and Reconciliation, has declared that the proposed Special Court on ‘accountability issue’ would investigate the ‘main line of command’ (on the Government side) and not soldiers, who were only carrying out orders. In the same vein, she has also said that the court would also investigate the ‘actions of living ex-LTTE leaders’. It is unclear if the cadres of a non-State player would also be spared likewise, and only their leaders would be probed.

It is anybody’s guess if the Government leadership of President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe, collectively or selectively, shared CBK’s views in public that ‘over the last decade, the Sri Lankan public in general and she in particular had lost confidence in the judiciary’.

If so, it flies on the face of the Government claims (in her words) that ‘we were able to change that course of action by engaging the global community with an open mind constructively without adopting an arrogant and confrontational approach like the Rajapaksas’, at least as far as the post-polls state of the nation’s Judiciary went.

It is another matter that these are areas for Parliament to debate and decide upon where the ‘National Government’ on the one hand and the representative Tamil National Alliance (TNA) are divided from within and outside, too. If at some time, the issues are taken up before the very same Judiciary, its present ‘credibility’ could rub on the Government and on the nation as a whole – whichever way it decides issues flowing from new ‘accountability’ laws and newer institutions, whether created by the Government through Executive orders, or by Parliament through new laws. It’s another matter that the latter course could include constitutional amendments, whether or not they may require public clearance in a referendum.

Alongside, CBK has also confirmed that such a Special Court would only be a ‘domestic affair’, and would not contain any international jurists, as is still being sought by sections of the Tamil political leadership(s) nearer home and afar. It remains to be seen what these sections have to say now and later.

With the Government re-marking the predecessor Rajapaksa regime’s ‘terrorist’ markers among Diaspora individuals and institutions, the question of ‘credibility’ of one among the Tamil population nearer home could well vie with the ordinary acceptance and daily interactions of the international community, on the other.

 

In the land of the living

President Kumaratunga has also confirmed that only fewer than 300 LTTE prisoners were in custody, and that it may have to be presumed that the rest of the missing persons were not ‘in the land of the living’. It confirms the Rajapaksa Government claims on the former, and implicitly charges the same with causing the possible exit of the rest from this ‘land of the living’.

Given President Kumaratunga’s international stature and public standing nearer home, despite her plausible lack of continued popularity as a presidential candidate if it came to that, her ‘land of the living’ statement may be as much without authority as it may be conferred with credibility. The two Commissions of Inquiry appointed by the predecessor Government – and accepted in spirit by the incumbent – have put figures much lower than the internationally accepted ones, and after some spade work nearer home. More importantly, they have argued, again not without evidence, that many of the missing persons might have migrated overseas, and the West was not cooperating enough, to trace them.

As much during war as afterwards, a substantial number of Tamils, particularly youth, were/are believed to have used the decades-old ethnic strife in general and the ’83-Pogrom otherwise, to seek ‘economic refuge’ in the West, and passing them off as ‘political asylum’. They continue to have the sympathy of the western polity and society, bugged respectively by constituency-interests and ‘Great Wars’ consciousness. The Sri Lankan Tamil Diaspora groups, particularly those that have taken a pro-separatist line, have supported them, both during war and afterwards.

 

Whither Sirisena?

If these are political arguments, for and against, then there are also legal and technical arguments to contend with. First and foremost, is the new Government considering fixing only command responsibility within the armed forces on ‘accountability issues’ or would want to fix political and consequent moral responsibility, too. The latter has been the western practice since the Great Wars, particularly concerning the ‘other’ but not the self, as Afghanistan and Iraq in recent times would reaffirm. If the ‘main line of command’ is restricted to the armed forces, then it may include then Defence Secretary, Gotabhaya Rajapaksa, but could not leave out then Army chief, Sarath Fonseka, now the nation’s much-decorated stand-alone ‘Field Marshal’ and a (failed) political leader in his right. If it extended to the political command, as was the case, the buck might have to stop with then President Rajapaksa, but may not escape President Sirisena, who was the Acting Defence Minister in the last stages of the war. Put in the reverse, if Fonseka is excluded, then Gota should also be excluded. If President Sirisena cannot be held accountable, then Rajapaksa too may not be. If the argument is that in the final phases of the war, Fonseka was away in China, so was President Rajapaksa, away in Jordan. If command and communication had travelled with the latter, so had it travelled to and with the former, too.

 

Embedded HR activist

While almost everyone in the ‘main line of command’ in the armed forces and the Government are alive, most on the LTTE side, starting with global terror supremo of his times, Velupillai Prabhakaran and most of the rest are dead and gone – or, are ‘presumed’ to be ‘not in the land of the living’.  Will the Special Court be mandated to try in absentia the LTTE leaders presumed dead, at least to fix responsibility of command, whose orders alone the fighting cadres had carried out? Or, would the cadres be tried as stand-alone, and their responsibility, if any, fixed only at those levels?

Either way, it would tantamount to equating the State player with the non-State, terrorist actor, and confer as much rights on the latter as the accountability on the former. Is it what the Government actually intends, and has promised to world, though without possibly considering the inherent issues concerned with such a construction? It’s all saying a lot that too at a time when PM Wickremesinghe has linked IS terrorism in Middle East/West Asia to the need for Sri Lanka to seek IMF stand-by facility.

The unmentioned and extendable ‘IS threat’ to Sri Lanka, if any, particularly on the Indian Ocean front, in one way or the other, or for one reason or the other, too needs to be studied and considered, with as much seriousness (if any) as the Government has been doing with and to the UNHRC demands and resolutions. Is the Government then going to extend the current promises on ‘accountability probes’ to any part in an ever-expanding post-9/11 ‘global war on terrorism’ of a particular variety, and now still expect the armed forces to fight with the same amount of commitment and selflessness as they have done thus far, or have an ‘embedded human rights activist’ looking from behind his shoulder whenever he aims his gun at the ‘enemy’?

At some point during the continuing national ‘accountability’ discourse, the Sri Lankan State cannot also escape a stout demand for a similar probe into the ‘JVP insurgency’ and the armed forces’ alleged killing of 60,000 Sinhala youth, men and women, in the re-productive age-group, and accompanying action against the ‘main line of command’ among the surviving members on the Government side, uniformed or not. Where such demands could lead to, and to what all consequences, if made on the streets of the Sinhala areas, as the Tamils have been known to do, is too early to fathom.

There is also the question of the 12,000 ex-LTTE cadres, whom the present leadership now grudgingly admits – so does the TNA – had actually been rehabilitated by the Rajapaksa regime. They surrendered in good faith, or had developed this good faith after their surrender and re-education, rehabilitation and mainstreaming. If any LTTE leader in their ‘mainline of command’ is now spotted from among them, what would the State want to do with them before the Special Court?

The question arises: Would they be proceeded against, after the Government had held that the predecessor once again failed miserably – not to have examined them properly and adequately? Or, would the Government as a continuing institution go against one more of the ‘solemn promise’ made to the Tamils, that too by an ‘adversarial Sinhala Government leadership’, that too at the most advantageous time for the latter?

 

De-listing and after

The Kumaratunga observations on the ‘main line of command probe’ comes at a time when the global LTTE proxy in the ‘trans-national government of Tamil Eelam’ (TGTE) has reiterated its resolve to increase the pressure for ‘self-determination’ for the Tamils in the political landmass now being acknowledged by the rest of the world as ‘Sri Lanka’. It’s a further and unforgotten step towards separation, which did not materialise in CBK’s ‘land of the living’ when she was President, only because the international community ignored the LTTE’s ‘parallel government’ with all institutional accruements, starting with territory and people.

The TGTE reiteration coincides even more with the Government’s decision to de-list some of the overseas SLT Diaspora individuals and groups as ‘terrorist’ by the Rajapaksa regime in the months and years after the conclusion of the ethnic war. The TGTE and its leadership were not among the entities whose names have been struck off the original list. If all this forms a part of PM Wickremesinghe’s forgotten ‘international network’, to include pro-Government, pro-national SLT Diaspora groups and individuals this time, the others would only promptly label/brand them as ‘traitors’ of their cause – and seek to convince the Tamils back home, accordingly.

The Government cannot ignore their past successes in this direction, with or without the LTTE’s presence. Today, at a time when the moderate TNA leadership itself is divided on ‘hard-line’ aspects of ‘accountability issues’ and attendant concerns, which the current Government leadership is being adequately addressed, where would it all lead to?

The other question is if the likes of the TGTE leadership too were to fall in the ‘main line of command’ within the LTTE for ‘accountability issues’ before the promised Special Court even if some of them may not be held responsible for direct ‘war crimes’ as commonly understood, would such an argument also end up netting in the TNA leaders, too? After all, they too had sympathised with the LTTE, suffered and supported Prabhakaran’s ways and leadership, but to the very same results for the Sri Lankan State, nation and the armed forces.

The history of Tamil separatism has shown that internal divisions and contradictions, barring in the case of a select few in the social and political leadership (including the LTTE) has been more about the modus than the goal. Barring a select few even in the present TNA leadership, the rest seems to favour a one-success-at-a-time approach to ‘separation’, which they are ready to leave behind as a legacy for their future generation(s) to accomplish.

Whether the TGTE’s reiteration of the demand for ‘self-determination’ in these days and weeks after de-listing is also a reiteration in this direction, or is also a reminder to the Tamils back home and the international community, otherwise, is the question that the world may be asked to review all over again, at UNHRC and elsewhere – though not now, but on another day – remains unclear, just now. So are the Sri Lankan Government’s attitude and approach towards ‘accountability’ probe, ‘reconciliation’, et al, going beyond gestures and promises – the latter, easy to make but very hard to keep, other than as promises!

(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)