War Crimes, Human Rights: A home Grown Solution

By Dayan Jayatilleka

(March 14, Singapore City, Sri Lanka Guardian) One simply has to thank Island columnist Kath Noble, and not for the first time, for injecting a note of sanity into an overheated discussion, if discussion it is, among us natives. Following an interview with the respected progressive intellectual Fr Francois Houtart, who presided over the Dublin exercise, she has written a thought provoking piece this week on the issue of war crimes and accountability. While I do not go as far as she does, nor even in quite the same direction, she has at least struck a dissenting note into what is otherwise a cacophonous chorus, and proceeded to make a constructive suggestion.

The Sri Lankan discourse on war crimes, violations of international humanitarian law and human rights in general, divide into two camps, both of which demonise the other. One holds that the entire matter is a campaign by imperialism and its agents; human rights is itself a suspicious Western usage if not a concept invented millennia ago by us Asians (perhaps even the Sinhala Buddhists) which we need no lectures on— and the only response we need give is to "just say no", which we can with a little help from our (Asian or Third World) friends.

The opposing school of thought is that Sri Lanka is a human rights hellhole and either became so during whichever the administration the critic is not in sympathy with at this moment, or has been so for most of its existence— and can be redeemed only with more than a little help from our (Western) friends.

What, however, are the facts? Given the nature of the Tigers and the repeated experience of successive Sri Lankan administrations, there was no negotiated solution possible or desirable at any stage of the final conflict. Any such attempt would have provided an exit for the Tigers. Given that the Tigers were an army or armed militia with a small navy and a fledgling air-force, the state had to fight a full-on war to its logical conclusion, with the aim of the military destruction of the enemy. While political multi-polarity is healthy, military bipolarity is not permissible within a state; certainly on a small island-state. Given that the Tigers had fielded more suicide bombers than any and all other terrorist groups put together, and that the stated Tiger strategy involved (what ‘Taraki’ called) ‘asymmetric deterrence’, i.e. deep, destructive terror strikes into the ‘Sinhala heartland’, it was necessary to uproot and eliminate the LTTE suicide cells and extensive clandestine network.

No war takes place in a vacuum. The assertion that with the Tigers encircled, it would have been possible to have a less bloody outcome, and therefore the endgame that actually took place needs be investigated as a war crime or violation of international humanitarian law, is sheer nonsense, for three reasons:

Firstly, the lesson of twentieth century history is that a ‘textbook fascist’ force as The Economist (London) admits the Tigers were, has to be utterly decimated.

Secondly, the Sri Lankan forces had to operate according to a tightening time table not of their own choosing, as regional and sub-regional politics as well as mounting international pressure, gave the State a narrowing window of opportunity. It was a neck-and-neck race between the historic chance of finishing off the Tigers and concerted international pressure interrupting the offensive as once before, or retarding its momentum. If not for these external factors acting as accelerants, the war could/would probably have taken another month to finish, with greater circumspection.

Thirdly, at no time were civilians wittingly targeted as a matter of policy, nor were civilians boxed in and deprived of an exit by the state, as was not the case in a war that took place around the same time and is being rightly investigated by a probe initiated by the self-same UN Human Rights Council which gave Sri Lanka a 29-12 majority vote. It is the Tiger terrorists who were keeping the civilians hostage while the Sri Lankan military was trying to help them escape.

This having been said, it is also necessary to draw attention to the fact that in no civilised democracy is the allegation of war crimes or human rights violations made by an ex-military officer or even a serving one, treated as treason and cause for prosecution! After the recent Gaza war, several serving members of the Israeli Defence Forces (IDF) told the press that a certain Rabbi had been giving them ‘spiritual instructions’ that it was ok to kill Palestinian civilians. Others testified that certain orders were given which were at best, ambiguous, in relation to civilians and could have led to incidents of killings. Years before, a group of helicopter pilots of the Israeli Air Force signed a public petition refusing to engage in ground attack operations in built up civilian areas. In none of these incidents were any of the servicemen prosecuted for revealing military secrets. When there was an outcry over the massacres at Sabra and Shatila in the aftermath of Israel’s Lebanon War of 1982, Israel held a much publicised inquiry in which General Ariel Sharon, war hero, was named as one of those responsible.

In the United States, servicemen have confessed about civilian killings even on prime time TV. Far from being locked up, they have been questioned, those allegedly responsible investigated, taken into custody and prosecuted (though the allegation is that sentences have been light and there is a virtual revolving back door). Some incidents involving civilian deaths, such as the infamous killings during Baghdad traffic jam by Blackwater ‘security contractors’ (i.e. mercenaries) have led to hearings before the US legislature.

Therefore, today’s Sri Lanka has a grotesque uniqueness in its response to Ret General Fonseka’s sporadic statements about war crimes. Those statements are as ironic as they are reprehensible —ironic because he was responsible for the toughest policies and practices during the war and would permit no softening – there is no reason to behave like a lynch mob and call for his burning at the stake. This official response only marks us out as having failed to be aware of and catch up with modern norms of conduct on matters of accountability, and damages our image in the eyes of the world. As I had warned earlier, it is not so much Gen Fonseka’s allegations but the deafeningly loud trumpeting of those allegations as a betrayal

of national military secrets, followed by prosecution on the same grounds, that has escalated the international push on the issue (this time at the level of the UN Sec Gen).

The issues of accountability will be dealt with by each society at its own pace, and in accordance with its own imperatives. The UK has still to conclude its second inquiry into the killing of unarmed civilians in broad daylight, on Bloody Sunday 1972! Many societies find organic ways of catharsis and conciliation.

In order to get the war crimes/human rights pressure off Sri Lanka, it is imperative to realise that such pressures are a symptom and by-product of something having gone wrong in our external relations and our ability to communicate with the world. There is a growing deficit of Sri Lanka’s ‘soft power’ and conspicuous failure in the realm of ‘the New Public Diplomacy’ (both phrases of Harvard’s Prof Joseph Nye).

Learning from our experience in Geneva, I propose a third position, which consists of five propositions and proposals as solution.

1. There must be a substantive difference between our wartime and post war policies, though two factors must remain, namely, no polarising rake-up of the past and no intrusion into national sovereignty.

2. It is not necessary however, to stonewall, as we did and had to, during the war. There has to be an authentic, manifest, unilateral liberalisation in our attitudes and policies on human rights.

3. Just saying ‘No’, and giving not merely the West but the UN the finger, is not a solution. Many of our friends and allies will not want to get into a squabble with the UN and its Secy Gen on our behalf. Those who fought alongside us diplomatically during the war may not do so during peacetime, especially if that peace drags on without reconciliation and normalcy. Furthermore, as Sudan realised, sometimes even one’s friends do not wish to get into a punch up with the West on one’s behalf if they have bigger fish to fry.

4. The only real antidote against external pressures on accountability and human rights is to have strong, credible national institutions and mechanisms. Sri Lanka does not have a national human rights body which fits this description, though arguably there was once an approximation. The country needs a strong, independent Commission on Human Rights, Equality and Elimination of Discrimination headed by a person with international credentials and of acknowledged international stature, or the appointment of such a personage as a powerful National Ombudsman on Human Rights.

5. Cooperate with the Asian region and the global South on matters of human rights. It is not enough to countervail Western pressure; it is necessary to adhere to evolving consensual norms in Asia and the global South. ASEAN already has a human rights charter, and the African Union has a mechanism which was one of the examples for the Universal Periodic Review adopted by the UN Human Rights Council. Build up South-South linkages and learn "best practices" from the democracies of the global South such as Brazil, Uruguay, Argentina, Mexico, Colombia, South Africa, India, Pakistan, Indonesia, Nicaragua, Philippines etc.

Those ‘nationalists’ who propose a ‘national’ solution for everything, have failed to call for the strengthening of the national human rights institutions, and mechanisms; a strengthening that is possible only by the appointment of an independent body with ‘teeth’, consisting of distinguished nationals who have brought honour to their country of origin by performance and recognition in the global arena.

What stands between Sri Lanka and the full reintegration as a normal and successful member of the international system, is not only the prejudice of the West but the perniciousness of our own dominant ideology; our own mindset. John Stockwell, a dissenting former CIA employee, blew the whistle on America’s tacit support for apartheid South Africa in Angola, in a book he entitled ‘In Search of Enemies’. He was referring to the mindset in the White House. It is time to for Sri Lanka to stop the search for enemies and ‘turn the searchlight inwards’. I believe what ails us is already best defined in a comparative analysis (which makes no reference to Sri Lanka) by Professor Fred Halliday, renowned radical scholar of international relations at the LSE, writing in Open Democracy on ‘The Miscalculations of Small Nations’. He describes the phenomenon as ‘the puff of ideology... self-inflating’ and a ‘delusion’, arguing that:

‘...the responsibility devolves onto the self-inflating nationalist ideology ...with its heady mix of vanity, presumption and miscalculation...If the supreme responsibility of democratic leaders is indeed to protect their own peoples, then the briefest of comparative overview can show just how pernicious the impact of the kind of nationalist delusion...The chief agent of destruction is not to be found in "culture" (in the guise of religion or some other vague source of identity) but in the arrogance, recklessness and ignorance born of nationalist excess - which, to be sure, often uses religion and associated "cultural" offerings as part of its packaging...True, such miscalculations about the capabilities of one’s own forces and the reactions of others are not confined to small nations. Most major nations have many and larger blunders to their name...The difference is that except in the most extreme of cases - notably Nazi Germany - these large states have been able to recuperate their losses and in large measure continue to inhabit their illusions of grandeur. Smaller peoples pay a higher price... [Sakaashvili’s] entrapment in nationalist delusion was always going to backfire.’

Human Rights are not a Western invention or booby-trap, to be decried and shunned like the devil. Though there is a constant attempt to use human rights as an instrument to undermine national sovereignty, the answer is not to shun human rights or to pretend that these are intrinsically inscribed in our culture and therefore automatically observed, but to protect them ourselves and to maintain verifiably high standards of human rights observance nationally. While it is true that the West uses human rights in a duplicitous manner, the answer is not merely to content ourselves with exposing and denouncing that duplicity as we must (and I did, in my turn) but to observe and protect those rights in a manner that is other than duplicitous and hypocritical. The answer to duplicity and hypocrisy is not counter-duplicity but sincerity and truth. The great African liberation fighter Amilcar Cabral said that ‘tell no lies, claim no easy victories — the best propaganda is the truth’. He had a resonance which catalysed a revolution in the colonial country, Portugal, which was oppressing his own.

The vital lesson is to hold the moral high ground. During the war Sri Lanka held that ground, not because of some innate moral virtue deriving from intrinsic cultural superiority but because of the demonstrably fascist character of our enemy, the Tigers. Today that moral high ground must be recaptured and can be done so only by our own positive efforts, not by reference to the negative attributes of a defeated enemy, nor attributing the same qualities to whoever comes along to criticise us. Human rights are not the preserve of West or East, North or South; they are universal and derive from the universality of the human condition. Human beings are possessed of certain inalienable rights. What is most important is not that we are ‘Sri Lankan’ (a ‘karmic’ circumstance, surely) but that we are human, and even more basically, sentient beings.

[The writer was Sri Lanka’s Ambassador/Permanent Representative to the United Nations, Geneva during the Special Session of May 2009, and was a Vice President of the UN Human Rights Council].