National sovereignty is won on the national soil but sustainable only in the international arena. The Rajapaksa and Ranilist regimes have amply proved their structural incapability of doing so.
by Dayan Jayatilleka
The UNHRC’s regional composition reflects the ratios of the world’s population. Therefore, it is an accurate mirror of the world—in which we can view ourselves.
Geneva 2021 was not a mere defeat or failure on the part of the Gotabaya Government; it was the lowest number of votes ever obtained by Sri Lanka at the UNHRC. Most of the abstentions, which were decisive, came from Islamic states. In short these were votes lost by the Gotabaya Government. The Latin American vote included those of governments well to the left-of-centre such as Mexico, Argentina and Uruguay.
There are two crucial indicators to comprehend Sri Lanka’s contemporary standing in the world in comparison with the past.
The vote we obtained at the UNHRC after the war ended in May 2009 was 29, the highest we ever obtained and the highest scored by any side in any resolution concerning Sri Lanka.
While on a continuum with the defeats sustained serially in President Mahinda Rajapaksa’s second term 2012, 2013 and 2014 at the UNHRC, the number polled by Sri Lanka in March 2021 was the lowest ever. That is the measure of the increased mutual isolation between Sri Lanka and the world on President Gotabaya Rajapaksa’s watch and given his worldview.
While apparently cooling the explicit rhetoric of ‘war crimes’ (though implicitly infiltrating the category through endorsement of the OHCHR report and previous resolutions), Resolution 2021 drops a much wider net over the regime, a net which can easily enclose crimes such as the murder of Lasantha Wickrematunge, and any harshly repressive measures the regime may take in the future. With shorter reporting deadlines, there is now a closer, tighter, organised global scrutiny under UN legitimacy.
After the OHCHR mechanism starts operating, it will be the headquarters strategising and feeding national judicial proceedings in a number of member states of the UN, and potentially, international ones as well. The national court proceedings will amount to an international legal encirclement of the regime. International public opinion will be negatively impacted, affecting travel and investment decisions and our external markets.
National sovereignty is won on the national soil but sustainable only in the international arena. The Rajapaksa and Ranilist regimes have amply proved their structural incapability of doing so.
Meanwhile the President appointed a Committee to recommend measures “to deal with those who misinterpret and spread falsehoods about the Buddha’s character, the Tripitaka and Buddhist sacred sites”. The more involuted the State’s ethos, the more isolated it is in the world.
The road not taken
Over the past 10 years, all Sri Lankan leaders and administrations actively lied to, and/or hid the truth from both the Sri Lankan citizens and the UN Human Rights Council. At least since 2011, there have been in the recommendations of successive official Sri Lankan reports, options for internationally credible domestic mechanisms to investigate allegations of crimes in violation of International Human Rights Law (IHRL) and International Humanitarian Law (IHL).
Gotabaya Rajapaksa as Secretary/Defence and as President simply refused to understand that domestic options for internationally credible accountability mechanisms and processes constituted the necessary surgery that could defend and save the Sri Lankan armed forces and the legitimacy of its war against the Tigers from purely international probes which may not be impervious to bias.
This time around in Geneva, the Rajapaksa administration did not make any commitment to the LLRC and Paranagama reports and to the implementation of their accountability recommendations; recommendations which the Government could well have offered to the UNHRC as an alternative while agreeing to a time-frame and international monitors to enhance credibility and acceptability among member states.
Both the Rajapaksa neoconservatives who were allergic to accountability and the Ranil-Mangala neo-liberals who detested national sovereignty, covered up the accountability recommendations of the LLRC and the Paranagama Report (the latter primarily authored by Sir Desmond de Silva QC).
Ranil and Mangala buried it on the specious ground that the Paranagama Report recommended foreign judges, which was dishonest because the Report set out a spectrum of foreign experiences while narrowing down and pinpointing those—including fusions—that were purely domestic. Their argument against the Paranagama report also reeked of hypocrisy because the 2015 resolution they co-sponsored, built foreign judges, investigators and prosecutors into the text.
When US diplomats Nisha Biswal and Athul Keshap cut the Yahapalana Government slack and advocated “a credible domestic accountability mechanism”, which would have helped political stability and sustainability, M.A. Sumanthiran and Dr. Paikiasothy Saravanamuttu flew to London, New York and Washington, lobbying for escalation and endorsement of UN Human Rights High Commissioner Zeid al Hussain’s outlandish report. London messaged Prime Minister Wickremesinghe through High Commissioner James Dauris. Ranil and Mangala bypassed the Biswal-Keshap formula. They also sabotaged the Paranagama report due to the venomous hostility towards it and Sir Desmond in particular, of Sumanthiran and of the UK-based Tamil diaspora which launched a vicious campaign against the distinguished Sir Desmond.
What follows are three segments from the Paranagama Report, the first of which quotes the LLRC Report, clearly proving that there were models for an internationally credible domestic mechanisms for accountability which could have been used by the Rajapaksa administration and the predecessor Ranil Wickremesinghe administration in defence of Sri Lanka, but were not:
(A) “In its report the LLRC made specific recommendations that ‘priority should be given to the investigation, prosecution and disposal’ of cases and that ‘all allegations should be investigated and wrongdoers prosecuted and punished irrespective of their political links, so as to inspire confidence among the people in the administration of justice’ and the criminal justice system. The LLRC asked that the ‘Office of the Commissioner should be provided with experienced investigators to collect and process information necessary for investigations and prosecutions’ and made clear that ‘due account must be taken of the violation of core Human Rights and International Humanitarian Law Principles so that appropriate punishment, commensurate with the grave nature of such crimes could be meted out.” (Paranagama Report p 150)
(B) “Thus, in view of the fact that neither the current Government of Sri Lanka, nor its predecessor was disposed to submitting any individuals to the jurisdiction of foreign courts, it is the view of this Commission that a successful experiment in The Gambia…may possibly be viewed with favour. In that instance a court which was part of the national legal system, known as the Special Division of the Supreme Court of Gambia, was set up taking on some judges from the Commonwealth. This was a court that met both national and international concerns. In the event that Sri Lanka were to set up a purely domestic tribunal without the participation of any foreign judges, it is the view of this Commission that there should be international technical assistance and observers.” (Ibid pp. 152-153)
(C) “This Commission is of the view that any one of the following mechanisms individually or in combination are available:…(iv) The prosecution within the domestic court system of all those alleged to have committed war crimes and/or crimes against humanity. (v) The prosecution within the domestic court system of those alleged to have committed war crimes and/or crimes against humanity but confined to those who bear the greatest responsibility. (vi) A combination of prosecution within the domestic court system of those at (v) above coupled with a TRC...” (Paranagama pp. 155-156)
This is what could have saved the Government in Geneva this time.
Sir Desmond de Silva, QC was the second of the two most iconic personalities of Sri Lankan origin in the international legal firmament, the first being Justice C.G. Weeramantry. I leave to the late Sir Desmond, the last word on the road not taken by successive Sri Lankan governments and the correct signposts he commends this country. In an email dated Saturday 9 September 2017, he wrote to me that “Both the Rajapaksa camp and the present [2015] administration have dumped your [UNHRC 2009] success and the Paranagama Report…the Paranagama Report had to be dumped as was your success, because we were travelling in the same direction.”
President Gotabaya’s dangerous tilt
Most Americans read the name Yang Jiechi after the head-to-head between the USA and China in Alaska. Sri Lankans knew of him six months ago. But more of that in a moment.
In Alaska, with China’s Foreign Minister Wang Yi seated next to him, Yang Jiechi, the top member of the ruling Communist party’s Politburo in charge of foreign affairs, made a pugnacious, 20-minute-long ideological and systemic critique of the USA, with references to its internal human rights record and domestic racism. “Drawing against the drop” (to use Joseph Wambaugh’s phrase) Antony Blinken fired back, asserting that the USA never denies its mistakes and shortcomings unlike certain other countries, but as a democracy, self-corrects. He was implying the philosophical, historical and systemic superiority of a transparently self-critical, open democracy.
The exchange was important. The world lines up on one or other side of the debate. Yang and Blinken were helpful in drawing the philosophical lines of demarcation. Within each country, there are those who would line up on one side or another. Blinken’s case is, on balance, the stronger one. As Amartya Sen famously explained, there is no real trade-off between material well-being of the people and their enjoyment of democratic rights and freedoms, including the freedom of expression, because a famine in a country without a free mass media has very different consequences than one in a country in which the media reports the news fairly accurately and therefore, public opinion is a powerful deterrent to letting things just go on.
That said, the USA has a real fight on its hands because China has a coherent case and critique too. In countries like ours, we shall have to make up our own minds. Amartya Sen among others, has argued that every being has more than one identity, and that is more than OK. We have always been conscious of the two dimensions of our identity as a developing country of the global South and as Afro-Asia’s oldest democracy. We have, at our best, reconciled and defended both identities.
We shall have to do so again. In so doing we shall have to take what is valid from the Chinese case and its critique of the West and integrate it into our democratic commitment and political way of being which we rightly share much more—and much more fundamentally—with the democratic West than with China.
Back to Yang Jiechi. His performance in Alaska revealed him as the Chinese Communist Party’s ideological and policy top gun in world affairs. It was Yang Jiechi who visited Sri Lanka and met President Gotabaya Rajapaksa in the last quarter of 2020. Anything he places on the record is of significant weight, and it is vitally important to recall one of his lines from his visit to Colombo, as restated in the statement of the Chinese Foreign Ministry:
“…Yang Jiechi said…Guided by the important consensus reached by the heads of two states, China will continue to maintain close high-level exchanges and consolidate the political trust…” (Sri Lankan President Gotabaya Rajapaksa and Prime Minister Mahinda Rajapaksa Meet Separately with Yang Jiechi (https://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1823222.shtml).
It is during the discussion with Yang Jiechi that President Gotabaya Rajapaksa chose to qualitatively upgrade the political, governmental and party-to-party relationship with China to a level that no Sri Lankan leader ever has before. A statement by the Chinese Embassy in Colombo following a virtual event billed as an ‘Opening Ceremony of CPC-SLPP Advanced Seminar on Governance Experience’ disclosed that “…Chinese Embassy spokesperson Luo Chong said that the meeting was aimed at implementing a consensus reached by President Gotabaya Rajapaksa and President Xi Jinping in their telephone conversation as well as the recent high-level visit of top leader Yang Jiechi to Colombo.” (China, Sri Lanka expand political relations following Pompeo visit – The Island )
After the US-China polemic in Alaska, and the demonstration of the importance of Yang Jiechi, the content of the conversation between him and President Gotabaya, the reference to the consensus between President Gotabaya and President Xi assume a new significance. We are now better able to assess, as are the USA, India and the Quad as a whole, the special political—not merely economic—relationship between the Gotabaya regime and the CCP.
The ideological clash in Alaska took place after the high-level Quad meeting in Japan and the joint statement, which appeared as an Op-ed in the global press, of the four leaders, including President Biden and Prime Minister Modi. Significantly the statement expanded the definition of their joint vision of and for the Indo-Pacific. It included the new phrase “anchored in the shared values of democracy”.
Located in a crucial spot in the strategically critical Indo-Pacific, does the Gotabaya Rajapaksa regime reflect the values of the Quad or the Chinese ruling party, more?
Tony Blinken has called the competition with China, “the biggest geopolitical test of the twenty-first century”. This upping of stakes cannot but be of consequence for Sri Lanka under any administration but more so for the incumbent one, given its pronounced tilt to China as indicated by the content of President GR’s conversations with President Xi and later with Yang Jiechi.
Given the sharpening of the competition—some say the beginning of a New Cold War—between China and the USA, with India, Japan and Australia as America’s partners, in which democratic norms and values are a crucial battlefront and defining indicator, what could be the consequences for a regime on a small but strategically located island, which has under its new leader, converted from democratic norms and values, to the governance norms and values of China, while being located not in China’s neighbourhood but adjacent to one of the USA’s strategic partners, India?
What are the chances of the Sri Lankan regime’s quasi-alliance with the Chinese ruling party and its straying into the Chinese ideological camp, being of no consequence, especially when the regime is taking a politically tough-line on Tamil rights and meaningful devolution as per the 13th Amendment, laid down as a marker by India, the South Asian partner of the USA?
Yang Jiechi openly declared in Alaska that in China’s view the USA was in no position to address China from a position of strength. Is he correct?
If the US and its allies cannot retrieve the Afro-Asia’s oldest democracy from the spell of externally inspired and underwritten despotism, what chances and credibility would the US project for democratic values to guide the world order, actually have?
As a Realist, I wouldn’t bet on the chances of the Beijing-centric Sri Lankan political status quo remaining beyond the first Biden term (which coincides with the first GR term).
President Gotabaya’s post-Geneva perspective will determine his post-Geneva prospects. The more the President concentrates power in his own hands and those of his ultranationalist and militarist hardcore, the more he will concentrate global attention on his regime. The tighter the domestic repression gets, the tighter the international legal noose will get.
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