By Dr. Dayan Jayatilleka Courtesy The Nation

As the UK Permanent Representative explicitly stated when addressing the Human Rights Council on Oct 1, the US-UK resolution is firmly founded upon Zeid al Hussein’s report. As Zeid al Hussein made amply clear in his video statement to the Council a day earlier, Sept 30, his report contains at its core, the conclusion that war crimes, system crimes, of such magnitude and extent, were committed during our war that our judicial mechanism does not have the capacity to deal with them! Thus Zeid’s Report damns our war of self-defense, territorial reunification and liberation from terrorism; our contemporary history and our achievement as a society, a people that successfully resisted and prevailed over fascist secessionism.

This Report is the foundation of the US resolution which Sri Lanka embraced. The US resolution is based on the need to implement the recommendations of Zeid’s Report and to report back to the council on the progress of implementation. The Government of Sri Lanka has actually joined in welcoming Zeid’s dishonest, dangerous text and has promised to implement it. No ethical edifice can be erected upon such a morally-warped foundation.

The resolution affirms the need for the participation of Commonwealth and foreign judges, prosecutors, defense attorneys and investigators in the Sri Lankan judicial mechanism, including the new Office of the Special Counsel (read ‘Special prosecutor’) promised by Foreign Minister Samaraweera.

In other words, those who went through untold hardship and made untold sacrifices to rid this country from the dragon of terrorism will be investigated, prosecuted and judged for their pains, and by foreigners together with collaborationist Sri Lankans.  Those who rid the nation and the region of the Pol Pot of South Asia” to use the words of Pulitzer prize winning New York Times journalist John F Burns, are going to be given the joint special tribunal treatment that the UN and Kampuchea have given Pol Pot’s Khmer Rouge!
Our government has agreed to non-retention i.e. the purging of all those in the military who may be credibly implicated” through an independent administrative mechanism”, of serious violations of human rights. That means that they do not have to be proven guilty in a court of law. That also doesn’t mean only the human rights of innocent, non-combatant civilians. That means that if a member of the military is credibly implicated by an independent administrative mechanism of the serious violation of the human rights of a Black Tiger, he will no longer be retained in the armed forces!

This is the model the US adopted in Iraq after they invaded and occupied it: The disastrous de-Baathification of the Iraqi armed forces. Sri Lanka, a nation that triumphed over terrorism and preserved its sovereignty, and the Sri Lankan military that defeated one of the toughest irregular fighting forces on the planet, are now voluntarily submitting to the treatment that a defeated, invaded, occupied nation and military receive at the hands of its conquerors. We won a war, but we are being treated, are letting ourselves be treated, and are actually welcoming our treatment as if we lost the war. Today, the Tigers in France and Germany and those who march with Tiger flags in London and Toronto must feel as if they won and we lost.

The model of a Special Court and a Special Counsel’s (i.e. Prosecutor’s) Office with international participation is usually implemented pursuant to a Security Council resolution. In Sri Lanka’s case there was no such resolution, and any attempt would have been vetoed by our firm friends Russia and China. Here we are implementing it only because our government has consented to do so.

Furthermore this model is installed in failed states and/or states in which peace has been obtained through foreign or UN mediation. Here it is sought to be implemented in and upon a state that is a far from failed state, and is a state that succeed in defeating a powerful secessionist terrorist threat which many, far better endowed states have failed to do!

None of this was inevitable. The Government had other options. This government could have easily refrained from embracing Zeid al Hussein’s dastardly-toxic report. Instead it could have presented the final report of the International Advisory Committee to the Paranagama Commission, authored by Sir Desmond de Silva. It could have asked the Council for time to study the Zeid Report and requested the Council to study the Sri Lankan counter-report.

It could have leveraged the anti-terrorist global atmosphere currently resurgent due to the ISIS threat, and pointed out that we should not be punished for having defeated a dangerous threat, and that the consequences of terrorism are visible before our very eyes in the Middle East today, and that the only thing that prevented Sri Lankan from being another Syria, Libya or Iraq is that we defeated terrorism.

The Sri Lankan government could have ‘kicked the can down the road’ till the next session and used that time to undertake a credible purely domestic process as recommended by the LLRC as well as the Paranagama-Desmond de Silva Report.

The Government chose not to do so, and chose instead to embrace the Zeid Report and the US-UK resolution which is based upon it. The Govt. didn’t even try to negotiate the best possible deal for Sri Lanka. What the Wickremesinghe Government has done is enact in Geneva the diplomatic equivalent of the outrageous CFA and Chandrika’s ghastly PTOMS. 100

Of course the Government, while being primarily responsible for the treacherous sellout in Geneva, is not the only player that is culpable. The ghastly, disgraceful October 1,2015, outcome at the UNHRC was not inevitable.

It was not inevitable, firstly, because, as stated above, the new government had plenty of other options.It was not inevitable, secondly, because as the October 1, 2015 US Resolution clearly states in its preambular paragraph 3, it is based upon the UNHRC resolutions of 2012, 2013 and 2014, while it also states that the OISL report flowed directly from the resolution of 2014. This is accurate.There is no mention whatsoever of the UNHRC Resolution of May 2009 because that was a clear cut victory for Sri Lanka and gave no purchase or traction for the US moves against us. In short the US resolution and the Zeid Report were in no way traceable to 2009 but were on a continuum with and were made possible by, the serial defeats incurred by the Rajapaksa administration in Geneva in 2012-2014. The Rajapaksa administration need not have dismantled the victory of May 26-27, 2009 in Geneva, which was a Great Wall in defense of this country, its sovereignty, its military, and the historical and international verdict of the just character of our war of liberation.

Therefore, while the Wickremesinghe government is primarily responsible for the Geneva 2015 disaster, secondarily responsible is the Rajapaksa administration which managed through a March of Folly in foreign policy and diplomacy in the post war years (especially its second term), to throw away the near two thirds majority in the Council which we obtained in May 2009, representing the massive global coalition we had built there, a mere six years ago.

Morally, however, the Rajapaksa administration is far less culpable than the Wickremesinghe one, because there is a world of difference between, one the one hand, folly based on the weaknesses of arrogant ignorance and sheer incompetence, and on the other, conscious capitulation, witting collaborationism and cold-blooded treason. 47
How can this submission to a lacerating process conceivably help reconciliation? The Treaty of Versailles was imposed upon a defeated Germany and the reaction it spawned was horrendous. What if the humiliating conditions of the Treaty of Versailles were sought to be imposed upon a victorious state and nation? In Sri Lanka, there can be no North-South reconciliation at the expense of South-South harmony.