by Prof. G.L. Peiris Courtesy Island

The events of the last week demonstrate, with poignant clarity, the folly of naïve expectation and the need for realistic thinking.

This cannot be better illustrated than by reference to the reassuring statement, barely hours before tabling of the Resolution, by the Cabinet Spokesman: “The (UNHCR) Report proposes establishing a hybrid court with international judges, but I think the U.S. backed Resolution will want that expunged.” Equally confident statements have been made throughout the week by several of his cabinet colleagues.

The sequel, not surprisingly, has been quite different. The text of the U.S. Resolution, submitted to the Council on the last date for submission, advocates the participation of “Commonwealth and other foreign judges” and, no less significantly, calls for the involvement of foreign personnel including “authorised prosecutors and investigators” in the work of the Office of the ‘Special Counsel’ (in effect, the Special Prosecutor).

It is absolutely essential, in the interest of a coherent and nationally beneficial strategy, to insist that, once a co-sponsored Resolution (that is to say, a Resolution brought by the United States, with Sri Lanka joining in the bringing of the Resolution) is placed before the Council, every member of the Cabinet, in terms of the seminal doctrine of collective responsibility, is bound by the text of the Resolution and is compulsorily held to account for the entirety of its consequences and repercussions. During the last few days there were several instances of Cabinet Ministers, no doubt acutely aware of the grave harm inflicted by the Resolution on Sri Lanka’s national interest, seeking to distance themselves from core elements of the Resolution while remaining members of the Cabinet and the Government. Imputation of responsibility to the Government as a whole for the entire effect of the Resolution is inescapable.

A Resolution of this kind, in which we directly join with the United States as co-sponsor, imperils Sri Lanka’s wellbeing beyond redemption. The most harmful consequence of this action, apart from abject capitulation to what is manifestly unjust, is that we ourselves, by our deliberate action, prevent supportive nations in the world community from raising their voice in our defence. In the David and Goliath situation in 2014, the United States, for all its might, was able to muster only 23 votes in support of its Resolution, while 12 countries voted against, with 12 abstentions. The result was that less than one-half of the total membership of the Council felt able to associate themselves with the content of the U.S. Resolution.

The countries which extended their support to us relied persuasively on grounds of principle firmly anchored in intuitive concepts of justice and fairplay, and the value systems underpinning basic structures of the United Nations system. There were, for instance, emphatic assertions that “interference is counterproductive” and “went beyond the mandate of the High Commissioner” (Russian Federation), there is “double standard of play” (Cuba), “aimed at developing countries forcing them into submission” (Philippines), parameters have been shifted and “there is intolerable interference in the internal affairs of Sri Lanka” (Pakistan) and that “People have the right to choose their own path” (China), while intrusion creates “a negative impact” (Maldives). Countries made use of the Debate on Sri Lanka to make strident protests against “serious risks created by intervention” (Venezuela) and “the biased approach to specific countries” (Ecuador). They decried failure “to take into account continuing progress” (Thailand) and the attempt to stifle the “energy” (Indonesia) of countries. Regrettably, the Government of Sri Lanka now proposes, with one stroke of the pen, to silence all these countries which have steadfastly stood by us on the basis of their convictions through our challenges and travails.

Above all, the public of Sri Lanka must not be lulled into the comforting belief that the Human Rights Council is a body which can safely be entrusted with fair, objective assessment of situations. This is starkly evident from the candid musings of functionaries at the highest levels of the U.N. system. In an evaluation of the Human Rights Commission, the predecessor of the current Human Rights Council, Mr. Kofi Annan, at that time Secretary-General of the United Nations, lamented that the Commission’s “declining credibility and professionalism cast a shadow on the reputation of the U.N. system, as a whole”. He specifically referred to “a credibility deficit” and underlined the need for adherence in the future to principles of “impartiality, objectivity and non-selectivity”. U.N. Watch had this apt comment to make on the Commission’s successor, the Council: “The Council’s first few years have gone from bad to worse, showing even more selectivity and politicization than that which marred the Commission”.

The High Commissioner for Human Rights, to his credit, has made no bones about his intentions regarding Sri Lanka. At his media conference in Geneva, he declared that the Report on Sri Lanka is an exercise that has been done “for the first time”; that the Report is “rather unique”; and that it is “the first of its kind” by his Office in respect of any country.

Having regard to the scale and intensity of intrusion into Sri Lanka’s internal affairs, it is hardly surprising that no other country would even remotely contemplate agreeing to such a Report which the Resolution specifically appreciates, let alone co-sponsoring on its own initiative a Resolution founded upon it. In the thinly veiled guise of “effective security sector reforms”, the Report goes so far as to make drastic recommendations relating to demilitarization of the North and the East, downsizing the military, repealing not only the Prevention of Terrorism Act but, in substantial part, indispensable security mechanisms embedded in the Public Security Ordinance – rudimentary legislation enacted even prior to Independence – and impinging on command structures of the military.

Other cardinal recommendations, breathtaking for the degree of their intrusive impact, include fundamental land reforms, distributing of political and administrative powers within the country, constituting altogether new criminal offences entailing liability without the protection of Statutes of Limitation, and the establishment of “special” courts entirely outside the contours of the Island’s constitutionally entrenched Judicature.

The Resolution which we ourselves are now co-sponsoring, “encourages” us to implement these recommendations.

As for the criterion of justice and fairplay pervading the content of the Report, even at its most basic level, numerous anomalies leap out of its pages, as it were. A few examples will suffice. 193 countries are exhorted to prosecute Sri Lankans “under universal jurisdiction”. Sri Lanka is severely castigated for delays in resettling internally displaced persons, but no mention is made in appropriate terms of the principal reason for the delay – namely, the mines intricately laid by the LTTE, claiming in fact the life of even a French bomb disposal expert some months before the end of the war; the strictures for “persecution” by Sri Lankan political and military authorities, without any proper consideration of the harrowing problem of “human shielding” and the obvious complicity of the LTTE in this regard; the wholly unfounded, but hugely damaging, statement that the LTTE had not made use of hospitals and other similar facilities in the North which, by virtue of such activity, were deemed legitimate targets by Sri Lanka’s Armed Forces; and the strikingly invidious instructions to all Member States of the United Nations to apply an especially stringent yardstick (not operative across the board) in considering applications by Sri Lanka’s military and police personnel for participation in peacekeeping and training programmes across the world.

Surveying the developments of this eventful week, one cannot but be struck by the claim that the Report would have been infinitely worse, had a government led by Mr. Mahinda Rajapakse been in power at this time. It would be difficult to imagine graver allegations, carrying more condign punishment, than those set out in this Report. It purports to embody findings pertaining, inter alia, to widespread unlawful killings, systemic sexual and gender based violence, kidnappings, abduction and disappearances, recurring patterns of torture, calculated starvation of civilian populations, denial of essential medical supplies and the recruitment of children to be deployed in war.

Strange as it may seem, the Government has now decided to co-sponsor (that is to say, call upon the Council to adopt) the U.S. Resolution which “notes with appreciation” the Report, one of the core findings in which is that there are reasonable grounds to believe that Sri Lanka’s Armed Forces committed all of these diabolical acts carrying exemplary punishment. How this can be claimed as a victory for Sri Lanka defies all understanding.

However, the claim that the Report was appreciably softened as a result of the change of Government, is of singular importance for quite a different reason. One of the primary aims of the Report was to examine, and to arrive at conclusions on, events encompassed in the final stages of the war. These are events which are said to have taken place in the past. They are fixed and unalterable happenings, if they occurred at all.

It is impossible to understand how findings as to what happened during a particular period in history can change, depending on the complexion of a government which assumed office six years after the commission of the alleged events. One would be equally hard put to comprehend how the attitudes of external actors to the subsequent government, and its predecessor, could have any rational bearing on an objective appraisal of past events.

There can be no more compelling proof of what we have consistently maintained: objectivity is furthest from the tenor and substance of the Report. Far from being a voyage of discovery in quest of the truth, it is a naked political exercise.

No less facetious is the claim that the absence of names of alleged offenders in the Report is a commendable achievement. Naming and shaming at this stage, on the basis of anonymous testimony incapable of verification by the most basic techniques known to the law, will obviously carry very little credibility. It would be incomparably more damaging for the alleged offenders to be identified by so-called hybrid (but in fact international) courts which will operate as political instruments, in much the same way as the Report has served an essentially political objective.

One of the most bizarre developments so far is the assertion, by official representatives of the Sri Lanka Freedom Party, at a Press Conference held at the Party Headquarters at Darley Road, and prominently reported in the media, that the Party “neither accepts nor rejects” the Report. In the eyes of the Party, it would seem, the Report is neither good nor bad, neither right nor wrong. It simply has no view on the matter. In the midst of the swirling controversy engaging the whole spectrum of society, the Party maintains a stoic silence on an issue bearing on the very foundations of national survival. A more responsible approach is surely to be advocated as a matter of the highest priority in the national interest.

The solution, it may be suggested in all earnest, is neither surrender nor a posture of non-committal detachment. What, then, is the way forward?

The Government is in possession of an amplitude of material which, properly used, will demonstrate beyond any effective challenge that Sri Lanka’s Armed Forces, by the action they took in the closing stages of the war, confronted as they were by an unparalleled hostage situation deliberately engendered by the LTTE, are in no way culpable in terms of established principles of international law. This is why it is a matter of the greatest importance that the Government should, without any further delay, make available to Member States of the Human Rights Council the Report on the Second Mandate of the Presidential Commission on Missing Persons (The Maxwell Paranagama Commission), which was assisted by internationally renowned experts who were mandated “to provide assistance to the Commission with regard to international humanitarian law, international human rights law, customary international law and the laws governing armed conflict”. They were merely resource persons whose advice was certainly not binding and could be accepted or rejected by the Sri Lankan Commission, at their discretion. They were not, in any sense, judges, prosecutors or investigators having independent authority to act in their own right. They performed an exceedingly useful, although limited and advisory role, and there is absolutely no justification for suppressing their thorough and painstaking work which provides essential protection for our Armed Forces.

The travails of the Government arise from their unfortunate resolve to abandon the bedrock of principle for the shifting sands of expediency.