Could it be speculated, (purely as a theoretical exercise, of course and I am being excessively cynical in affirming this), that anyone who accuses the security forces of involvement in civilian killings in the conflict areas, is guilty of treason or of imputing genocide on the part of government forces? Or is such a person culpable in terms of any of the multifarious and cunningly devised offences under the Emergency Regulations?
If so, then many of our strongest dissenters throughout the past many decades, including academics, lawyers and activists, would be immediately culpable. Indeed, not only would individuals be culpable but also members of Presidential Commissions of Inquiry.
Involvement of politicians in disappearances
For example, the Presidential Commission of Inquiry appointed in November 1994 by then President Chandrika Kumaratunga to probe enforced disappearances in the North and East, (headed by a retired judge of the Court of Appeal), concluded that ninety percent of the disappearances were at the hands of the security forces; army, navy, airforce and the police. The security officers repeatedly implicated in the disappearances were, in fact, named in this Commission Report. Proceeding from our critical questioning earlier, would it then follow that the Chairman of this Commission of Inquiry would have been guilty of an offence if the currently prevalent Emergency Regulations (ER) were operative at that point of time? This question is sufficiently absurd in order to point to the equally absurd nature of current government policy and practice.
The point is that such policy and practices are designed not to protect the military but to safeguard the politicians. Such efforts have a long history. For example, the three 1994 Disappearances Commissions Reports (Western, Southern and Sabaragamuwa/Northern and Eastern/Central, North Western, North Central and Uva Provinces) indicated the hands-on involvement of Cabinet Ministers in the enforced disappearances of Sinhalese, Tamils and Muslims during 1988 - 1993. These included the then Justice, National Integration, Law Reform & Buddha Sasana, the then Minister of Central Regional Development, the then Minister of Water Development and the then Minister of Irrigation and some twenty seven members of parliament. One parliamentarian was involved in thirty disappearances in his area.
These perpetrators are still roaming at large in the political arena, some holding high positions in Parliament.
Then again, fourteen provincial council members, twelve local level administrative officers and a Buddhist priest along with twenty police superintendents, fifty one police officers in charge (OICs), twelve army captains and four majors were implicated. Two OICs (in the Central Province and in the North-West Province), were jointly implicated in a startling number of fifty four disappearances. All Commissions cautioned however, that proper inquiries need to be made evidence given by the complainants to arrive at a definitive finding of guilt. Predictably, no effective action or prosecutions followed.
Justifiable criticism of politico-military forces
The point again is that there are a great many honourable officers, both senior and junior, serving in the police or the army as it were. It is their name which is tarnished by cover-ups or by silence. In many cases, those responsible for atrocities belong to special units where the command responsibility is vested not in the regular command structure of the army or the police but in politicians.
So, in effect, it is to prevent criticism of these special extra military politico-forces that such a veritable song and dance is made about not criticising our 'heroic forces.' It may be well to point out that there is nothing heroic at all about gunning down civilians in cold blood. Indeed, it is very much to the contrary. And the good name of Sri Lanka's law enforcement forces or the military can only be tarnished when these practices systematically occur.
Yet, when (justifiable) criticisms of the police or the army in this regard are clumsily twisted to form charges in respect of treason or of accusing the government of genocide, we enter an entirely different arena of debate. The term 'genocide' is clearly defined in international law with specific connotations in regard to the massacre of people of a particular ethnicity. Purely accusing the forces of involvement in the killing of civilians cannot, in any sense of the word, be imputed to mean that accusations of genocide are being levelled. Undeniably, it all turns on the nature of the language used.
The importance of
preserving exactitude
in terminology
For example, we see United Nations Special Rapportuers, after concluding missions to Sri Lanka, being extremely careful of the wording that they use to categorise the abuses that take place, indeed to the point of irritation as it were. In his recent Mission Report (February 2008), the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Manfred Nowak makes the point, after careful consideration, that it is his view that torture is 'widely practised' by law enforcement officers in Sri Lanka. The term 'widely practised' was interpreted by him to mean referral to 'instances of probable torture in several diverse locations' and not as a 'systematic' practice. This distinction was made for the reason that referring to this as 'systematic' would lead to particular consequences in international law.
Such caution is understandable given the specialized mandates that the Special Rapportuers hold and the impact that such terminology has in legal terms. Government policy makers and prosecutors should learn some lessons from such caution.
An uncanny twisting
of the coin
Indeed, the coin may be uncannily twisted when the government attempts to indulge in the wild repression of its critics on the basis that such criticism amounts to allegations of genocide being made against the forces This twist comes precisely in the fact that such allegations may have a domino effect in the international legal sphere where attempts are being made by supporters of the LTTE to level charges of genocide against the government.
The more and more that this term, (unjustifiably and unnecessarily), occupies our public space, the more we become vulnerable to being pulled into exactly that kind of discussion that we should avoid like the plague. This is perhaps a deserved caution, given the manner in which defenders of the government appear to be rushing pell-mell, at it were, into unfortunately indefensible areas of policy and practice. |
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