Reflections on Geneva and the way forward

by Gnana Moonesinghe

Are Sri Lankan domestic initiatives for wartime accountability and reconciliation a  non-starter?

Reflecting on this issue of culpability raises the question ‘is accountability and reconciliation a non issue among Lankan leaders?’ Governments come and governments go but this issue remains on the back burner raising the perennial question of who are the sons and daughters of this nation state? Is there a legitimate approach to their inherent human rights irrespective of their identity?

This query becomes urgent  when the UNHRC begins its periodic investigation. 

What has been the stumbling block in clearing this problem? By and large it has been a question of defining the concerns of the UNHRC and the position of the Sri Lankan government on this matter. The major issue is that of investigating the culpability of the forces during the three decade war with the LTTE and vice versa. The SL  government  looks upon some of the accusations as inconsequential non- events, claiming either that casualties have been at a minimal or negligible level or there have been none at all. Hence its claim that there is no serious issue calling for investigation by the UNHRC.    

On the contrary, ever grateful for terminating the three decade war and the elimination of the dreaded leader of the LTTE, the Southern constituency spearheaded by their political  leaders have created an ‘aura’ around the forces.  On the basis of their success the forces have been categorized as a special breed who cannot be criticized or questioned on any war-related matter; they are referred to as the veerodhara or war heroes.   This is a fair tribute to the forces responsible for winning the war for the Nation. Yet it is questionable to presume that they could not have done any harm in the past nor can they do so in the future. 

However, there is no denying that in the course of waging a war and heat of battle when judgment of  right and wrong becomes cloudy and sometimes imperceptible; elimination of the enemy by whatever means takes precedence.  Some errant behaviour in such circumstances is to be expected and in a war context, acceptable.  However the entirety of the forces have been identified as an exclusive group who can do no wrong and consequently need not even be investigated let alone charged of any offence. In such a context, there is no possibility of an understanding between the government of Sri Lanka and the UNHCR. The Sri Lankan state has maintained this position even in the face of credible evidence of grave crimes and human rights violations by the forces as well as the LTTE. The external call for investigation will not resonate with the authorities within the Sri Lankan nation since the latter is in denial and will not accept even evidence presented to them.  

 Over the years UNHCR had made repeated requests for a review with recognized legal experts  to have this matter of culpability investigated in order to  arrive at an acceptable verdict. The Lankan authorities did not go along on the ground of external intrusion into the nation’s sovereignty. Had we accepted expert legal investigation this matter could have been concluded a long time ago and the nation could have stepped on to the path of reconciliation. There is undoubtedly an issue of sovereignty but on this matter it could have been waived in terms of practicality.

There are occasions when we have sought assistance from international organizations to overcome domestic exigencies like assistance from the World Bank.  On such occasions  we were compelled to submit to conditions even briefly. I believe at times like this there is a need to be pragmatic. What is sought is confined to  a safe area of advice proffered and not  action  demanded. It is up to the authorities to know when it is necessary to compromise on our stand on sovereignty for the sake of pragmatism and winning reasonable external goodwill, and when it is necessary to stand up for the nation’s sovereign rights.

It has also become vital to establish cohabitation for the sake of internal peace among the communities without relevance to international players. If this had been followed, then it would have been possible to keep peace between the different communities. There would  then have been no role for the UNHCR.

Insularity encourages growth of anti-democratic tendencies as we have seen in this country. In such circumstances the politicians and the citizen have no yardstick- in terms of world standards – by which their behaviour can be measured.  The 19th Amendment to the Sri Lankan constitution restraining authoritarianism was withdrawn and 20A put in place restoring many of the powers of the Executive. It also encouraged the installation of several military personnel to administrative positions. This fueled a fear psychosis  of an emerging military government among the people.

In this atmosphere reconciliation has receded in importance especially after the Easter attacks by Muslim extremists against Christians who were in church or going to church.  This increased the already strained relationship between the Muslims and the Sinhalese following the Southern turmoil that was created by Sinhala chauvinists against the Muslims and further bruised relationships.

This situation of ethnic tension is complicated by the lack of guidance from the leaders of the two minority communities. We had a recent incident of Muslim MPs voting with the government to enable it to have have the required two thirds majority for the passage of 20A. This resulted in many differences among the Muslims. Voting for 20A had no prior support from the people they represent and appeared to have been a spot decision by the Muslim MPs.  The Tamil leadership in the North on the other hand is concerned with agitating for increased administrative power rather than making policy decisions that will benefit the jobless men and women and the war widows living in extreme poverty .

Since the issue of reconciliation has been put on the back burner, frustration is creeping among  the Tamils.  To date the international community has not been in a position to compel the government to be accountable for the actions of the forces during the war, particularly its closing stages.  The authorities who could move in this matter have been non-starters; therefore  the initiative has to come from especially enlightened men and women at the helm of power as well as from civil society. 

It is time to think afresh independently rather than along oft repeated UNHRC concerns or those of our leaders. Even after the passage of the Sinhala Only Bill, the Muslims as a community were looked upon by the Sinhalese as a friendly ally. They presented themselves as a community willing to learn Sinhala and accept employment where available. They created wealth by setting up numerous small businesses. Until the anti-Muslim riots targeting Muslims in the south in 1918, the Muslim community had remained friendly and cooperative with the Sinhala majority. 

In fact during the war years some among the Muslims who had the capability acted as a fourth column and gave vital intelligence to the establishment. After the end of the war the situation changed when the Sinhala Buddhist extremists were keen  to make their position stronger. 

The upcoming UNHRC sessions on Sri Lanka highlights the major issue of Sri Lanka’s withdrawal from its commitments to that body in Geneva. UNHRC clims its observations have been made following investigation of both the government forces and the LTTE. There is therefore no bias against the government, it urges. The investigations seem to have focused on evidence of serious violations of the rights of the victims. The purpose of the UNHRC is to investigate and prove or disprove culpability or non-culpability of individuals charged with rights violations. This will hopefully conclude the investigations and bring closure to the vexed issue of whether there were human rights violations or not  and open the way to sustainable peace. 

 To enable closure of this matter, both the Lankan forces and the Tamil Tigers need to be investigated and prosecuted if found culpable. Regardless of repeated requests SL has not acceded to this and UNHCR has unilaterally requested other member countries  to investigate contentious matters and if guilt is established, access the International Criminal Courts and proceed  under Extraterritorial or Universal jurisdiction. Such a step would seem to be a high handed action, an intrusion into a nation’s independence even if it be  justified  under extraterritorial or universal jurisdiction.  It is perhaps acceptable in these circumstances to pursue soft targets such as asset freezes and travel bans against the members of the administration to activate the government that has remained sluggish on this issue.

To make reconciliation a workable proposition, it is necessary for the government to probe the issue of hitherto unaccounted persons or the disappeared, as they are commonly known. They may be  dead, in custody or have fled to foreign countries hoping for a better future for themselves and become a part of the diaspora. However that be, it is vital that their near and dear have information of their whereabouts. Without that there can be no closure. Security of citizens is a primary responsibility of a government. Regardless of UNHCR’s concern, this matter must be given priority if the country is to be at peace and return to normalcy. Ensuring this will effectively cramp LTTE and diaspora propaganda keeping the ethnic issue alive. 

It is also important to ensure inclusion of all communities in education, employment and in the peaceful pursuit of the small scale businesses. Development of the country requires among other variables the absence of tensions between communities, either spontaneous or pre-planned by extremists from either side. The government must strategize its own approach and programs as well as those of other active players in the development sphere if peace and harmony is to prevail.  If we look after our own population there will be no reason for the international community to concern themselves about the welfare of our people. That will give us space to develop our programs for the benefit of all Lankans irrespective of majority and minority divisions. Peace can then prevail and the country grow in strength.