In Sri Lanka, war victor may be a loser
Posted on June 24th, 2010

NEVILLE DE SILVA Courtesy NEWSTRAIGHT TIMES

SRI Lanka has entered the world record books in spheres that range from politics to sport. It produced the world’s first woman prime minister and the highest wicket-taker in international cricket.

Now a small section of the international community wants to impose an unusual record on the island nation. For the first time since World War 2, the victor in war is to be chastised for alleged war crimes and other offences.

A year ago, Sri Lanka militarily defeated the Tamil separatist group, the Liberation Tigers of Tamil Eelam, arguably the world’s most ruthless and sophisticated terrorist organisation, which these same countries had banned as a foreign terrorist group.
Sri Lanka brought to an end a 30-year war in which thousands of civilians, including women and children, were mercilessly and indiscriminately killed by LTTE bombers and with explosives planted in trains, buses, buildings and on themselves.

Instead of being lauded for striking a decisive blow in the “war on terror”, this minority in the international community want an international tribunal to try Sri Lanka for war crimes and offending international law.

Why is it that these few, in an international community of more than 200 states, are pursuing this idea with such dogged determination? Is it that these countries and the international non-governmental organisations (NGOs) that are part of this chorus are so imbued with the lofty ideals of humanitarianism that they recoil at the slightest hint of a violation of international humanitarian law?
If this were true, we should find some of these nations and their leaders prostrating themselves before the United Nations pleading that special international tribunals try them for many offences under international conventions and treaties to which they are signatories.

Have we heard any of them plead mea culpa for any such violations committed since the last World War? From the torture of civilians in Iraq, Afghanistan and elsewhere to the air attacks on civilian populations in Afghanistan and Pakistan and the incarceration of terrorist suspects in Guantanamo Bay, actions that prima facie violate international law, goes on.

Yet, none of the offenders has ever been brought to justice before an international court, not even for the atomic attacks on Hiroshima and Nagasaki in which tens of the thousands of civilians died.
Where photographic evidence, recorded by soldiers themselves, has emerged as proof of torture, the offenders have been tried by the respective military establishments and not by international panels, thus keeping the legal process internal.

But when it comes to Sri Lanka, the accusers insist on an international tribunal, casting doubts on the impartiality of any inquiry that the Colombo government might initiate.

Already some have been throwing doubt on the “Lessons to be Learnt” commission appointed by President Mahinda Rajapakse, although recently US Secretary of State Hillary Clinton said the US “was very supportive of the approach taken by Sri Lanka”.

Having dismissed national inquiries as unlikely to name and shame, NGOs such as the International Crisis Group and sections of the Sri Lankan Tamil diaspora in the West are pressing for an international investigation into events in the concluding months of the war against LTTE.

This undying faith in international tribunals to act impartially, trying both vanquished and victor alike, has hardly been borne out by history.

The Nuremberg and Tokyo tribunals, the precursors to the ones on the former Yugoslavia and Rwanda, could hardly be considered fair and unbiased by the very standards of justice the West wishes others to emulate.

Two accused in the war crime trials, Germany’s Hermann Goering and Japan’s Hideki Tojo, labelled them “victor’s justice”, where the defeated were always the accused.

Even the chief US prosecutor at Nuremberg, Robert Jackson, in a letter to president Harry S. Truman, accused the allies themselves of having “done or doing some of the very things we are prosecuting the Germans for”.

One of the flaws of Nuremberg was in blatantly violating the dictum nullum crimen sine lege (“no crime without law”) for three of the charges against the German accused were not crimes at the time.

Some will argue that though they were not crimes in 1945, Nuremberg and Tokyo inspired their entry into the international criminal justice system.

Yet, more recent tribunals, such as the one on former Yugoslavia, have been found wanting.

Former US attorney-general Ramsay Clark described it as a political tool initiated by the US via the UN Security Council to justify Western influence in the Balkans.

The tribunal made no effort to charge Nato with war crimes in connection with its bombing campaign against the Serbs.

Danil Zolo, a leading Italian political and legal philosopher, in his book Victors’ Justice: From Nuremberg to Baghdad, exposes the manipulation of international penal laws as an instrument of Western power.

Zolo argues that a “dual-standards system of international criminal justice has come about in which a justice ‘made to measure’ for the major world powers and their victorious leaders operates alongside a separate justice for the defeated and the downtrodden”. The West now wants to stand history on its head.

Sri Lanka is not defeated. It defeated a ruthless enemy. Apparently, the West and NGOs do not wish to see other countries faced with similar situations adopt the Sri Lanka option.

The writer is a veteran Sri Lankan journalist

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