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Hard Resolution

How and Why Sri Lanka Should Argue that 
the UNHRC Reject an External Inquiry

| by Dr DAYAN JAYATILLEKA

“It's a hard rain a-gonna fall"
- Bob Dylan

( March 13, 2014, Colombo, Sri Lanka Guardian) Going by media reports it would seem that the US-UK is veering towards a clearer fore-grounding of a mandate for investigation of Sri Lanka by the Office of the High Commissioner for Human Rights, a position which would crystallise around March 15th or 18th in Geneva.

The response of the Sri Lankan government in the case of a resolution which does not contain an external investigative component should be one of constructive engagement, and if it is not, a social and political price will be paid by the government. On the other hand, if the resolution retains or reinforces an investigative mandate for the OHCHR or the Council, the government’s response should be to fight against it globally and within the Council, which will receive the endorsement of society at large, except for certain enclaves.
During the bitterly fought end of a long war of national defence against the monstrous LTTE, individual elements of the Sri Lankan armed forces may have brutally transgressed, but national self respect demands maximum resistance to being subjected like Devyani Khobragade to the institutional equivalent of an invasive full body probe. Sri Lanka should resist being singled out and its sovereignty collectively violated by resolution.

The most specious and disingenuous arguments are in play as part of a disinformation operation to justify such an investigation. For instance a list of country situations in which an investigation either by the Human Rights Council or the High Commissioner’s Office was authorised is being trotted out. The briefest of perusals of the list would show that all these situations are one of the following:

• Strongly ongoing conflicts (Syria, Darfur)
• Illegitimate regimes (unelected, military dictatorships such as Myanmar)
• Failed states (Sudan/Darfur)
• Occupied territories under international law and UN Security Council resolutions (Israel).
To bring Sri Lanka into this list would be classic case of giving a dog a bad name and hanging it or far more mildly, of mixing apples and oranges.

By sharp contrast,

• Sri Lanka is a legitimate state with an elected government, whatever its transgressions (and they are many).
• The prevalence of democracy — contrary to the recent strictures of the former president Chandrika Bandaranaike Kumaratunga— is dramatically evidenced by the 78% vote obtained by the TNA in an election held in an area saturated with troops.
• There is no ongoing armed violence on any large scale in Sri Lanka (as in Syria or Darfur). Therefore there is no urgent imperative to save lives. Sri Lanka is in a post-war situation and has been so for five years.

Thus an external investigation of Sri Lanka either by the Council or the Office of the High Commissioner would be the first time that a legitimate state which is not in a situation of war (either external or internal) and is not in occupation of any territory which either belongs to another state or is in dispute, would be subject to investigation with regard to a successfully concluded war conducted by its legitimately constituted armed forces, entirely within its territory and against a terrorist non-state actor.

It is in this quite precise and concrete sense that a resolution calling for an external investigation by whichever mechanism or agency, would be dangerously precedent setting. The Council should reject such a resolution which contains any such transgression of international norms.

Sadly, sheer incompetence, intellectual inability and squandering of the ‘soft power’ resources of the Sri Lankan state, apparently make it an uphill task for the Sri Lankan government representatives in Geneva to convince the Human Rights Council — 72% of which is drawn from the friendly regions of Asia-Pacific, Africa and Latin America— of these simple facts.

The Sri Lankan side should consider a bold trade-off. If the resolution were to contain no reference whatsoever to any external investigation of the war, it would be acceptable — as it most certainly was not during wartime—to set up an office of the OHCHR in Sri Lanka provided that its written mandate is forward looking, i.e. it monitors and reports to the Council on future violations. This would also reveal the truth about the resolution and those who are pushing it: is it all about preventing human rights violations and improving the situation in Sri Lanka — which is that the UNHRC is about— or is it intended to punish, polarise and dominate Sri Lanka?

While the rest of the original (March 3rd) text remains, if the US-UK draft resolution is modified so as to delete the reference to an OHCHR investigation, it will draw the line of demarcation through Sri Lankan society, creating a broad domestic consensus which isolates the hawks. If however, the resolution reinforces or retains an investigative role of the OHCHR, the line of demarcation in Sri Lankan society will shift in another direction, isolating the doves or the appeasers. It will be the CFA/PTOMS years, pitting the ‘patriots’ against the ‘anti-war camp’, ‘nation’ vs. anti-nation’ all over again. The text of the final resolution and its passage will do nothing less than determine and define for a significant period, the location of the border which demarcates the political community that is Sri Lanka; i.e. the nation.

The response of the Sri Lankan government in the case of a resolution which does not contain an external investigative component should be one of constructive engagement, and if it is not, a social and political price will be paid by the government. On the other hand, if the resolution retains or reinforces an investigative mandate for the OHCHR or the Council, the government’s response should be to fight against it globally and within the Council, which will receive the endorsement of society at large, except for certain enclaves.

Crimean Lessons for Colombo

Meanwhile Sri Lanka must learn the correct lessons of the ongoing crisis in the Ukraine. All the wrong lessons are being drawn. The Sinhala hawks — some in Cabinet—argue that Crimea is evidence that devolution should be off the agenda. It is analytically imperative however, to read the Ukraine/Crimea together with Georgia/Abkhazia and Serbia/Kosovo. The lessons seem to be as follows:

1. If one has a giant neighbour who has co-ethnics in a part of your territory that is contiguous with or adjacent to it, it is counterproductive to have a regime in the capital that adopts a policy which is aggressive towards or is perceived as hostile by the said neighbour. In such a situation, the giant neighbour may intervene and cut off the relevant border area. Even with European neighbours and Western support, neither Georgia nor Ukraine could do anything about it. With only one neighbour, Sri Lanka is acutely vulnerable. Cuba by contrast, had enormous sympathy in neighbouring Latin America and the Caribbean.

2. The closest that Sri Lanka came to a Crimea situation was in the past, when Vardarajaperumal tried to trigger Cyprusization while the IPKF was on Northern and Eastern soil. Russia had military bases in the Crimea from centuries ago. Having won the war, the troops on the ground in the sensitive Tamil majority border areas are Sri Lankan. It is vital that the Sri Lankan armed forces retain its presence. Withdrawal is non- negotiable and any ‘drawdown’ is a sovereign decision of Sri Lanka. What is negotiable with the Northern PC is the role and function— the profile and ‘footprint’ — of those troops.

3. Any violence or perceived threat of violence by Sri Lankan armed forces or paramilitaries against the ethnic minority which has co-ethnics in the neighbouring giant; any perception of cultural colonisation or threat to the collective identity of such a minority and the North (and parts of the East) will wind up a Crimea. The ongoing alienation of the Muslim minority will only help the reactivation of the old notion of the ‘Tamil speaking people/s’ and will lose Sri Lanka its east as well, troops or no troops.

4. It is not possible for armed forces from the capital to hold off the vastly superior armed forces of a neighbouring state. What Georgia and the Ukraine could not do, Sri Lanka cannot do. Sri Lankan forces in the North and East cannot survive a projection of kinetic power by its vastly superior neighbour.

5. The declaration by the Crimea assembly and the imminent referendum in Scotland are an argument against excessive or centrifugal autonomy/devolution, but it is not an argument against autonomy/devolution as such. The breakup of Yugoslavia commenced and Kosovo became an independent country well after, and because of the dissolution of the Kosovo assembly and the revocation of the autonomous status of the province. The lesson for Sri Lanka is to implement, but not go beyond, the 13th amendment. This would be the equivalent of the Buddhist ‘Middle Path’ or the Aristotelian ‘Golden Mean’. Any deviation in the direction of excess on either side— too much or too little devolution— would lead us to a Kosovo, Darfur, or Crimea.

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Dayan Jayatilleka was Sri Lanka’s Ambassador/Permanent Representative to the UN Geneva in 2007-2009 including the Special Session of May 2009. He was also a Vice President of the Human Rights Council.

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