Cleaning up the Act

by Col R Hariharan

(May 05, Chennai, Sri Lanka Guardian) The report of the three-member UN panel of experts set up to advise UN Secretary General Ban Ki-moon on alleged war crimes and human rights violations committed during the final stages of the Eeelam war has produced two reactions – both on expected lines.

In the report made public by the UN on April 25, the panel found many of the allegations “credible” against both the Government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE). This has vindicated the suspicion of all those who had been accusing Sri Lanka government of committing these crimes. This section includes many liberal governments of West, INGOs, Tamil Diaspora, human rights activists both within and outside Sri Lanka and of course the rump of the LTTE still trying to revive the defunct organisation amidst Tamil Diaspora. (One will notice that I have omitted India and Tamil Nadu where attitudes are not crystallised as the issue is inexorably mired in domestic and national politics, not unlike Sri Lanka.) However, this disparate section has neither a common agenda nor a forum for collective action; it constituents widely differ on the follow up action to be taken on the report. These range from increasing diplomatic pressure to bring it up in the UN Security Council to indicting President Mahinda Rajapaksa for war crimes.

On the other hand, many Sri Lankans, including most of the political leaders, media and people, feel insulted as they believe their government’s actions during the war, regardless of the means, were justified as they ended the regime of terror unleashed by the LTTE. Mixed with nationalist sentiments periodically pumped in by political leaders for their own ends, this attitude has a sustaining power no ruler can ignore. However, even among this section, many feel the Sri Lanka government had not addressed some of the fundamental issues raised in the allegations. These relate to the basic Tamil grievances, the structural flaws in human rights dispensation in the country while ensuring rule of law, and denial of fundamental freedoms including free media.

The Panel report found five core categories of potential serious violations committed by the Government of Sri Lanka. Broadly these potential crimes include (1) killing of civilians through large scale and widespread shelling using multi-barrel rocket launchers and artillery in the no fire zone; (2) systematically shelling hospitals and other humanitarian structures on the front lines although these locations were known to the government; (3) depriving persons in the conflict zone of humanitarian assistance – food and medical supplies; (4) causing deprivation and suffering to the victims and survivors of conflict zones and confining them in closed camps and screening of LTTE suspects without transparency or external scrutiny; (5) intimidation of the media and critics and “use of white vans” to abduct them.

The panel report also found the LTTE had committed in the same period “potential serious violations" under six categories: (1) using civilians as hostages and human buffer in conflict zones and preventing them from leaving the area and sacrificing them as ‘cannon fodder’; (2) systematically killing civilians attempting to flee LTTE control and escape the conflict zone; (3) firing artillery and storing military equipment in the proximity of or from among civilians and IDP in No Fire Zone. This left civilians on the receiving end of retaliatory fire; (4) carrying out forced recruitment of children with intensified recruitment of people of all ages, including children in the final stages regardless of the hopeless military situation; (5) forcing civilians for digging trenches and other emplacements in LTTE’s forward defences and exposing them to dangers from shelling; (6) continuing with the policy of killing of civilians through suicide attacks outside the conflict zone, including a suicide bombing at a screening centre in Mullaitivu on 9 February 2009.

None of the panel “findings” is new; the same allegations have been morphing in various forms in different reports of international agencies, media and other governments from as early as February 2009 when the war entered the last phase. Some of the allegations had figured even before during the years of Peace Process 2002. Many of them have been well documented by not only by media but by reputed NGOs as well and the diplomatic community had periodically drawn the attention of the Sri Lanka government to them.

From the beginning the government had tried to ignore these allegations by branding them as part of international conspiracy. Even where it grudgingly accommodated international promptings for action, there was lack of transparency. There were covert political and bureaucratic efforts to scuttle fair and free action by investigating commissions; for example, after all what happened to the investigations into the senseless killing of five youths in Trincomalee in January 2006 or 17 aid workers shot dead at in Mutur in August 2006? The findings were never made public. This attitude had fostered a culture of impunity for the rulers by the time the government launched full scale war. So it was not surprising that such allegations piled up and eroded what little credibility was there in the government before the war.

The government’s lack of accountability was forgotten when President Rajapakasa’s well coordinated military operation, executed ably by General Sarath Fonseka, ended LTTE terror haunting the peoples’ mind for over two decades. It was easy for the government to gloss over repeated calls for proper investigations from INGOs and the governments of the European Union and other countries when people were celebrating the victory over the LTTE. It was politically convenient to call everyone who asked the government to be accountable for its actions a traitor or partner in international conspiracy to deny Sri Lanka the hard earned fruits of victory. Such viciousness touched even General Fonseka after he contested the presidential poll.

The response of the Sri Lanka government to international demand for accountability broadly falls into three categories: total denial of any aberrations in the conduct of final stages of war, fallacious justification that whatever action taken by the troops was in response to elimination of LTTE terrorism, and refusal to be accountable to the UN and international community for its actions as many other countries have been getting away with similar allegations against them.

Over a period Sri Lanka’s attitudes were frozen, and response became pedestrian. As far as the UN panel is concerned, the government appeared to have run out of ideas on how to handle the issues raised in it.

Minister of External Affairs Prof. G.L. Peiris has highlighted “some of the fundamental deficiencies, inherent prejudices and malicious intentions” that characterized report. Apparently, the same three phrases can be applied to Sri Lanka’s handling of allegations as they snowballed over a period of time. He said the report failed to recognise any of the positive actions taken by the Government; but the UN panel was constituted to advise the Secretary General on specific allegations only. Prof Peiris had also questioned the fundamental legal basis of the conclusions arrived at by the Panel. Regardless of the merits of this line of argument, the fundamental issue is what is Sri Lanka doing about the allegations of war crimes committed by both sides? Can it improve its follow up actions? If not what does it propose to do?

Prof Peiris has also considered the public release of the UN report would obstruct and retard positive momentum, and create divisions while feeding into the political agendas of those who wish to “destabilize the country.” In the history of nations time is an invaluable and irreplaceable resource. The time for backroom diplomacy on this subject is gone; after all Sri Lanka had two years to cogitate over what to do about war crimes allegations. There is no war on and time for transparency is in.

It is time for action; an honest soul search will tell the Lessons Learnt and Reconciliation Commission is only a halfway house in the follow up actions required. I had written that it would satisfy none of the stakeholders (Sri Lanka: Lessons to be learnt and unlearnt ).

Sri Lanka will not be benefitted by over reacting to the UN panel report. As US ambassador Butenis stated (in Wikileaks) no government takes action its victorious army. At the same time in national interest Sri Lanka should not condone war crimes or gross human rights violations under the cover of coercive laws or environment that existed during war. It has a much bigger task of building a common national identity which had been eluding the country.

In the verbiage generated by the UN panel report, Sri Lanka’s failure to take adequate and speedy follow up action on some of the fundamental issues after the war should not be forgotten. These have been eloquently summed up by three eminent personalities of Sri Lanka when they addressed the LLRC. I am reproducing their words in the following paragraphs:

* “Every citizen must have full confidence and trust that he will be protected by the legal system of the country and by the Constitution. There, we have a long way to go. To achieve this, there are some essential prerequisites:

1. A Constitution which shields all citizens from abuse of power and authority and

guarantees them against any denial or erosion of their rights;

2. Freedom of information and complete transparency of government. [Justice CG Weeramantry, Justice of the Supreme Court of Sri Lanka 1967-72 &a Judge of the International Court of Justice (1991-2000)]

* “The Tamils have undergone, and are undergoing immense hardship. We need to reach out to them…. We have persistently discriminated against the Tamil people from 1956….Now I must tell you of a very, very sad situation, particularly bad and dangerous situation. We have in our prisons over 2000 young Tamil men. Some of them in the Remand Prisons have been taken on suspicion. Just picked up and taken in for detention without charges for years. [K Godage, former Sri Lankan diplomat]

* “Years of inequitable allocation of national resources and consequential disparities in regional economic development, infrastructure development and public service delivery have sown the seeds of discontent and disillusionment leading to conflict, insurrections of the South and the North and even the armed struggle towards a separate administration.” [Chandra Jayaratne, member of the Board of Directors of the International Centre for Ethnic Studies and a former President of Ceylon Chamber of Commerce]

Actions taken on the above aspects are too few, tardy and time consuming; they are mired in bureaucracy. The lack of progress in construction of 100,000 houses India offered to build is a good example. So rather than getting hot under the collar over UN panel report which is of limited consequence, Sri Lanka should clean up its act. It has no alternative. That would serve Sri Lanka’s larger interests of nation building. Then there would not be any need for scoring brownie points in international forums.

(Col R Hariharan, a retired Military Intelligence specialist on South Asia, served with the Indian Peace Keeping Force in Sri Lanka as Head of Intelligence. He is associated with the Chennai Centre for China Studies and the South Asia Analysis Group. E-Mail: colhari@yahoo.com Blog: www.colhariharan.org)