War Crimes?

13 A has been part of the Constitution for quite some time, there have been no moves to revoke it, and consequently there is no justification for the continued failure to implement it fully. The only problems concern land and police powers, which surely can be surmounted if there is the will to do so, and that precisely seems to be the problem: the Government has shown over the last two years that it has no will to reach a political solution.

by Izeth Hussain

(July 16, Colombo, Sri Lanka Guardian) I too saw the famous Channel 4 video, and I too was duly horrified, "duly" because I reacted in the way that the makers of the video obviously wanted its viewers to react. In terms of the obvious intent behind it, the video has to be judged a fine performance in journalism. The very title, Killing Fields, invoked the Cambodian horror, one of the greatest horrors of all time, of infinitely greater magnitude than anything that has been alleged to have happened in Sri Lanka. The opening shot of an ocean deluged in blood caricatured the tourist image of the gorgeous sunsets of this tropic isle, and recalled Yeats’ "blood-dimmed tide" in the greatest prophetic poem of the last century. From there on practically all the details amounted to piston shots on our solar plexus, chest and head, outraging our sensibility and trying to put our rational faculty completely to sleep. An excellent performance in a certain kind of journalism, true! But there is another notion of journalism according to which its purpose is to try to tell the truth, the whole truth, and nothing but the truth. In terms of that criterion the video with all its tendentious detail has to be adjudged – as did the TV critic of the London Sunday Times – as just plain junk.

However, a problem remains. The selection of detail may be tendentious and the intent may be propagandist, but the details may nonetheless be true. That possibility has been challenged on many grounds. From the beginning there have been several commonsensical arguments suggesting that the Government could have had no rational motivation for wanting to commit war crimes. For about six months before the end of the war practically everyone knew what that end would be. Why should the Government assured of its final victory blot its record at the final stage? Why should it do that when everyone knew that the eyes and ears of Tamil Nadu, Delhi, and powerful Western countries were trained on what was going on in the North? How can genocidal war crimes be squared with the fact that the Government saved scores of thousands of Tamils from the clutches of the LTTE and rehabilitated them? Can we really suppose that the Government was unmindful of the fact that the commission of war crimes would complicate the task of effecting ethnic reconciliation and a political solution? All these seem to me powerful commonsensical arguments making it extremely unlikely that the Government would have wanted to commit war crimes on a genocidal scale.

But there is one commonsensical argument that has somehow not figured in the public realm, not to my knowledge anyway. It concerns the role of India. My supposition is that the Indian Government had far more extensive and far more accurate information about what was going on in the North at the last stages of the war than any other government in the world. The underlying reason for this supposition is that India is known to have one of the best secret services in the world, namely RAW, with decades of professional experience behind it as befits an emerging great power. We know furthermore that India has to give special importance to what happens to the SL Tamils because of the fall-out in Tamil Nadu. It seems to me therefore that India had a wide circle of agents and informants operating in our North-East, and that RAW probably had contacts with the top brass of the LTTE including Prabhakaran himself.

Admittedly, I have nothing by way of definitive evidence to back my supposition, only circumstantial material backed by what seems to me compelling commonsense. I will now point to two mysterious developments. One is that KP, Kumaran Pathmanathan, was given privileged treatment by our Government right from the moment of his arrest. There was no question of his winning the Government’s confidence and making it believe that he, KP, could serve the Government’s interests, a process that would have taken at least some weeks. I suspect that the explanation for that ready acceptance was information supplied by Delhi that KP had been serving as a double agent for both the LTTE and Delhi. The other mysterious development is that Prabhakaran did not make his getaway in time when everyone knew that the LTTE was doomed months ahead of the end. I suspect that he had been persuaded that the tide of war would somehow be reversed, failing which he himself would be whisked away to safety. There could have been a very powerful force operating in the North to fool Prabhakaran into dooming himself, namely Delhi and its instrument RAW. Delhi could have been thinking along the following lines: saving Prabhakaran and his associates would only lead to endless trouble, whereas arranging for their wholesale extermination on the field of battle would be a fitting end for the murderers of Rajiv Gandhi.

I would point also to a further mystery. Over a long period the UTHR – the University Teachers for Human Rights – provided documented information on the misdeeds of both the Government and the LTTE. The information was richly detailed, and in the course of time came to be accepted as accurate and totally reliable. How was it possible for a few University teachers and their associates to gather all that richly detailed information that was severely damaging to the LTTE, for several years, without coming to a sudden brutal end? I am not impugning the integrity of Rajan Hoole, for whom I have the highest regard. He and his associates would have got information from sources they regarded as reliable, without enquiring what was there behind those sources. I suspect that behind them was some sort of understanding between the LTTE and Delhi. Otherwise the UTHR network would have been wiped out in no time. I would not regard a supposition about an LTTE/Delhi understanding as too far-fetched because it is known that the LTTE came to realize that the assassination of Rajiv Gandhi was its costliest mistake, and consequently it would have been prepared for much compromise in order to repair relations with Delhi.

So, it seems commonsensical and very reasonable indeed to think that Delhi knew far more about what was going on in the North at the last stages of the war than any other Government. If war crimes of genocidal order had been committed, Delhi would certainly have got alarmed over the possible fallout in Tamil Nadu, and started shouting. The fact that it did not do so I take to mean that war crimes were certainly being committed but they were not of a genocidal order, not of an order demanding immediate international intervention, not of an order requiring international investigations in the aftermath. They belonged to the category of the "horrors of war". Such horrors are perpetrated in the course of practically every war. We Sri Lankans must be prepared to acknowledge that our moral health requires that there must be a proper accounting over those horrors as part of a process of ethnic reconciliation, but only at the appropriate time.

Unfortunately, we cannot leave it at that because it is evident that a case has been constructed by the Western powers against the SL Government over the war crimes issue. The latest installment in that construction is the Channel 4 video. As those countries led by the US are very powerful, we have to take count of what their strategies and objectives might be in determining how we should react. I have in earlier articles argued that developments over war crimes have to be seen in terms of a paradigm of the New World Order/ New Imperialism, but I cannot go into details about that here. I will here consider what Western reactions might be to the Sri Lankan Government’s positions on war crimes, beginning with the argument that it can be held on commonsensical grounds that the war crimes were not of an order requiring international investigations. They will probably concede that that argument has to be given its due weight, but it is not conclusive. The Channel 4 video may be tendentious and propagandist but all its details cannot be dismissed for that reason, and likewise the details in the Darusman report cannot be dismissed even if it is established that it is a deeply flawed report. The point is that much evidence has been accumulating over the last two years – quite apart from that video and that report – showing that war crimes of an order requiring investigations were indeed committed.

The Western powers are not saying that it has been established that Sri Lankan leaders are guilty of war crimes. They are only saying that a prima facie case for investigations has been established. They are not saying that international investigations should be held straightaway; only that the investigations should be carried out initially by the SL Government itself. Here it seems to me that our Government has been placed in a quandary. Credible investigations will require the prior placing in effect of witness protection legislation. But even if such legislation is operative, it will probably be held all the same that potential witnesses were still afraid to testify. Quite frankly, I am here postulating considerable Western ill-will towards the present SL regime. What, after all, does all the so-called evidence of war crimes really establish if they are given total credence? They establish that horrors were perpetrated on the field of battle, but there is nothing at all to suggest that those horrors were perpetrated at the behest of the Government. A local enquiry stopping at that without going any further is not going to satisfy those Westerners who want to see that the President, Gotabaya, and other bigwigs are taken away in chains. It seems to me that the Government has been maneuvered into a no-win situation.

In the present situation, the Government has been allowed a grace period of three months to complete its investigations, failing which international investigations will be held. More recently we have had Miliband and Kouchener peremptorily demanding that the investigations be completed "soon", and the US Government has declared that it wants to see visible progress being made in the investigations, a declaration that clearly implies that in the alternative dire consequences could follow. In addition to all that the world-famous dancing prancing puppet on a string, Ban Ki-Moon, has declared that he will exercise continuing surveillance on the Sri Lankan situation beginning with an enquiry on UN personnel being kept out of certain zones in Sri Lanka. Surely, surely, all this is the New Imperialism in action, about the nature of which we had better have our minds clear. El Bareidi’s recent book establishes that the US Government deliberately ignored evidence pointing to the fact that there were no weapons of mass destruction in Iraq. But we know that they went ahead, undeterred by that fact, to kill around 600,000 Iraqis. It was an exploit worthy of the great top-dog conquering heroes of yore, such as Attila the Hun, Tamerlane, and Genghis Khan. In the dispensation of the New Imperialism Sri Lanka is an underdog.

However, it will not help one whit to fulminate against our contemporary Attilas. Instead we have to cope with them somehow, for which we have to exercise reason, commonsense, and also a sound moral sense which has to include a capacity to see ourselves as others see us. At the present juncture we should do everything possible to avoid international investigations. The most important reason for this is that they will inevitably be very protracted, and they will be totally irreconcilable with our need, our desperate need, to move towards a political solution and ethnic reconciliation. International investigation will be the greatest imaginable disaster for Sri Lanka, for every one of our ethnic groups including the Tamils, though they might be very interesting and even emotionally satisfying for the diaspora Tamils and many Westerners.

How will Westerners view this argument? They will probably hold that the argument may be theoretically sound but in practice it is totally unconvincing because there is no strong drive for ethnic reconciliation, and as for the moves towards a political solution they are farcical. By way of evidence they can cite for instance a recent statement made by TNA Parliamentary member Suresh Premachandran (Island of July 4). After the President took office in 2005 there was the All Party Representative Committee chaired by Tissa Vitarana, which made its recommendations, and the Experts Panel consisting of eleven Sinhalese, four Tamils, and one Muslim, which submitted a majority report to the President, but nothing came out of all that. Likewise, nothing came out of the Indo-Sri Lanka Peace Accords because 13A has not been properly implemented. In January this year the President appointed a High Level Committee to work out a solution together with the TNA.The latter tabled its proposals as a base for the talks and eight rounds have been held, but the Government has up to now failed to table its own proposals and nothing has come out of that exercise. Consequently the TNA will not participate in the Parliamentary Select Committee as it cannot be taken seriously. The Westerners could well feel entitled to hold that what the world has been witnessing is no meaningful move towards a political solution but Sinhala triumphalism and the arrogance of the conqueror.

My counter-argument would be that even if all that is true, there is still no case for international investigations after the expiry of the three-month ultimatum. Some flexibility is required on that point considering all the negative fall-out that can be expected from international investigations. However, the validity of this counter-argument would depend on whether the Government is seen to be moving meaningfully towards ethnic reconciliation and a political solution. An obvious first step would be a demilitarization of the North. On the issue of war crimes the Government seems to be in a no-win situation, as I have pointed out above. It has to do whatever seems feasible and reasonable, and focus on convincing the international community that a case has been constructed against the Government, which really is an instance of neo-imperialist bullying. But on the question of moving towards a political solution real headway can be made.

It has to take the form of the full and proper implementation of the 13th Amendment. The crucial question is whether or not the Peace Accords – from which the 13th Amendment emanated – are valid in international law. Reportedly in recent negotiations the Indian side has pointed out that our Supreme Court in ruling for the demerger of the North East had acknowledged the validity of the Peace Accords and 13A. The most important part of the case is that the Peace Accords were not morally valid because they were the result of Indian coercion following on the Government being forced to abandon the Vaddamarachchi operation. But is there any evidence to show that the Government was forced to abandon that operation? If the Government had made an appeal to the international community, it would have had full backing because none could have denied that a government facing an armed rebellion has an absolute and unconditional right – indeed a primordial duty – to end an armed rebellion by armed action. I have long suspected that the abandonment of the Vaddamarachchi operation was an act of treachery on the part of President Jayewardene. In the aftermath there were demonstrations, but not widespread and only of brief duration. There followed the JVP rebellion, but significantly it targeted the Sinhalese people, not the IPKF. There really is no case for arguing that the Peace Accords were invalid, either legally or morally.

13 A has been part of the Constitution for quite some time, there have been no moves to revoke it, and consequently there is no justification for the continued failure to implement it fully. The only problems concern land and police powers, which surely can be surmounted if there is the will to do so, and that precisely seems to be the problem: the Government has shown over the last two years that it has no will to reach a political solution. Possibly this is due to a mindset encouraged by the spectacular military victory over the LTTE which might make it seem that the SL Tamils have no alternative to accepting the diktats of the Government. Possibly there has been no understanding that although the Government has conquered the LTTE, it has not conquered Tamil Nadu, Delhi, and the Western powers, all of which want a political solution and can in the alternative deploy redoubtable hard and soft power against Sri Lanka.

The only sensible option available to us at the present juncture, it seems to me, is to pursue action on 13A. Jettisoning it without the concurrence of India will almost certainly lead to Sri Lanka’s isolation in the international community. Moving towards a political solution based on it will probably lead to a slackening of the pressure on alleged war crimes, because the West obviously sees Sri Lanka as India’s turf. After a political solution is virtually in place, we can proceed to an examination of alleged war crimes but only as part of a complex process of ethnic reconciliation which will have several strands. On the other hand, international investigations before a political solution is even adumbrated will rend us apart.