Columns

Foreign Minister Mangala: No other way

If the Lankan Government had expected the worst from the United Nations Human Rights Council (UNHRC) report this week then what it got was the best it could have hoped for in the circumstances: A crossbred court to probe Lanka’s alleged war crimes.
Even though Foreign Minister Mangala Samaraweera pledged on Monday at the UNHRC sessions in Geneva that Lanka will tell the truth, the whole truth and nothing but the redeeming truth to a local Truth Commission and seek through truth and tears to achieve national reconciliation, it was clear the UN’s Human Rights chief Zeid Ra’ad Al Hussein had a different snake oil to soothe a nation’s post-war anguish and act as a panacea for all her war spawned ills.

Two days later when he unveiled his UN-mandated human rights report on Lanka’s alleged war crimes between 2002 and 2009, he stopped short of demanding the Lankan Government to accede to the politically unthinkable. Recognising and welcoming the vision shown by President Sirisena since his election in January and, no doubt appreciating the commitments made by the new Government, he obviously did not wish to cook the goose for Sirisena by unsheathing an international sword and forcing it down his throat.

Even though the UN report on Sri Lanka has identified ‘patterns of grave violations in Sri Lanka between 2002 and 2011, strongly indicating that war crimes and crimes against humanity were most likely committed by both sides to the conflict’, which Zeid described as being ‘of the most serious nature’, he did not call for an international tribunal to inquire into the allegations much to the government’s relief. But neither did he applaud the Lankan Government’s own suggestion to set up a domestic mechanism.

HR Chief Zeid: Welcomes new government's commitments

In his recommendations, he stated, “The High Commissioner remains convinced that for accountability to be achieved in Sri Lanka, it will require more than a domestic mechanism.” A domestic mechanism alone would be suspect and would not provide the credibility that would be required to assure all parties that an impartial and objective approach would be adopted. And that would not do, Zeid ruled. Furthermore, it was also pointed out that the ability of the domestic legal framework to deal with international crimes was inadequate. Sri Lanka’s criminal justice system lacked the wherewithal to conduct an independent and credible investigation.

Instead what he presented was a compromise: A domestic mechanism with international participation. The report urged that “Sri Lanka should draw on the lessons learnt and good practices of other countries that have succeeded with hybrid special courts, integrating international judges, prosecutors, lawyers and investigators. Such a mechanism will be essential to give confidence to all Sri Lankans, in particular the victims, in the independence and impartiality of the process, particularly given the politicisation and highly polarised environment in Sri Lanka.”

This is as far as the UNHRC will probably go. Considering the harsh grating tenor found in the UNHRC reports issued in the last few years when it upbraided the previous regime for its intransigent nationalist stance, the hybrid offer made to the Sirisena government spells a dramatic shift in the way the Human Rights Commissioner now views the bona fides of the present regime. Where it could have drawn its Shylock pound and given full throat to its demand to achieve accountability through a totally international commission, it is clear that Zeid has realised that to ride roughshod over the Lankan Government and place its own political existence in peril, would be counterproductive.

Foreign Minister Mangala Samaraweera would have breathed a sigh of immense relief hearing Zeid’s concession to the Government. On Thursday, he confirmed an international role in the domestic inquiry mechanism but also added that the Government plans to conclude the proposed processes within 18 months. He also said the report has been a big blow to those who had claimed it would be a witch-hunt against the Sri Lankan Army. “The paranoia has been proven wrong. No individual culpability has been declared and the area of prosecution has been referred to a domestic mechanism. We have undertaken this journey not because of international pressure, but because there is no other way,” he declared.

HR Chief Zeid has granted a time period of nearly two years for the Government to establish the proposed mechanisms and implement it within 18 months. Intense diplomatic lobbying seems to have been at work to grant Lanka this grace of nearly two years. By the time Zeid’s recommendations become of practical importance, the two-year marriage tie of the national government entered into by the UNP and the SLFP would be ready to be torn asunder; and each party would then be free to separate and traverse their own respective paths. Thus what the Commissioner has awarded Lanka is not only a compromise hybrid court but also a two-year lull of relative inactivity before the burst of a tentative tempest.

But if Zeid’s words trickled honey into Samaraweera’s ears, it would have been melted Swiss dairy milk chocolate poured on the taste buds of the usual rabble-rousers waiting for a cause to emerge from the deadwood. For Wimal Weerawansa, after having clung and climbed the decaying Mahinda trunk to enter parliament, Zeid’s recommendation at the Geneva sessions would have been an Alpine sent opportunity to find his torrid place in the Lankan sun again.

Denied the chance to come out firing, had a totally international commission been thrust upon Lanka, he chose to come out all guns blazing nevertheless over the Zeid recommended hybrid court. “Are the people going to allow a hybrid court to be established here and allow our war heroes who brought peace to the country to be taken to the guillotine?” he charged on Thursday.

No doubt the Gammanpillas of Lanka, wrapped in the ‘Sinhala Lion Only” loin cloth and prancing like tadpoles in a used yoghurt cup, will soon join forces with these pseudo patriots to hawk the chauvinistic line and charge Maithripala for selling out Lanka to imperial powers.

But before they protest too much, shouldn’t they first inquire as to who first opened the door to international intervention? Namely, their erstwhile chieftain Mahinda Rajapaksa. No doubt they will dismiss with disdain the observation made by the Human Rights Commissioner when he said in his reports that “The OHCHR investigation contained in this report was born out of the past failure of the Government of Sri Lanka to address accountability for the most serious human rights violations and crimes.”

But can they ignore the considered opinion of an ardent Mahinda champion who used to regularly appear on television and defend Rajapaksa action, namely, senior lawyer Gomin Dayasiri, who said on Tuesday that the previous SLFP-led UPFA leadership had to pay a heavy price for refusing to inquire into accountability issues. Taking part in a live political programme on Sirasa TV, Gomin Dayasiri declared, “Had the previous leadership acted judiciously, the country could have avoided being subjected to an external investigation as directed by a resolution moved by Western powers in March 2014 in Geneva.”

Be it an international or a hybrid or a domestic tribunal, no one disputes the need to have the various allegations of war crimes probed. The international community has demanded it and Lanka has agreed that indeed the allegations must be probed.
What is at issue is primarily whether the court that adjudicates should be international or one solely made up of Lankan judges? Lanka is against a total international tribunal because it rightly fears that it will be an undue interference in the internal affairs of a sovereign state.

The international community doubts the impartiality of a court consisting of only local judges because the judges themselves are citizens of Lanka with personal experience of the war years and cannot be expected to approach the issue with the desired objectivity; and thus it is against a totally indigenous tribunal.

While it was open for the international community to have ignored Lanka’s protest and appointed an international tribunal it has, in view of the commitments made by the new Lankan Government under President Sirisena’s leadership, refrained from so doing. Instead it has opted for the compromise solution and decided on a hybrid court: part foreign, part native.

If the die-hards are opposed to even that and cannot see beyond a total domestic court, what alternative do they propose? Apart from shouting their heads off and trying to make political capital by fanning chauvinistic fires in Sinhala bellies, they have none? All they can say is that it will be against the sovereignty of Lanka to have anything but a sole domestic court. They are asking the sceptical international community to depend on the crystal ball of the thief’s mother to reveal who the thief is. It is to protect our sovereignty, they say.

But the world has changed. The concept of sovereignty too has changed. The answerability of even superpowers to the rest of the world has undergone a radical process. What was possible during the 1940s’ Second World War no longer holds true today. US President Harry Truman, pleading it was necessary to end the war, dropped the atomic bomb on Hiroshima; and to just make goddamn sure the Japs got the message to surrender, dropped it again on Nagasaki. Today, not even America, now the world’s sole superpower, can repeat such a deed and not be held answerable for crimes against humanity.

Sovereignty has come a long way since the days of Truman. As the Human Rights Chief Zeid said in his emotive opening speech at the 30th session of the Human Rights Council on Monday: “Sovereignty cannot be damaged by carefully evaluated commentary. The search for truth can do many things, but it does not weaken, violate or assault. But sovereignty is indeed threatened ……When corruption and cronyism eat away at the rule of law, the sense of community, the possibility of sustainable development and the legitimacy of government authority. These are factors which truly do endanger the sovereignty of States.”

Wimal Weerawansa and his jingoistic ilk should also not forget that in the case of Lanka refusing to comply with the UN’s compromise solution to have a hybrid court, the UN also the punitive power to place wide ranging sanctions against Lanka with immediate effect. And once sanctions have been imposed, it will be lifted only upon complete compliance. That is the danger.
Oil rich Iran still feels the heat of the sanctions imposed upon it by the UN Security Council when Iran rejected the Security Council’s demand that Iran suspend all enrichment-related and reprocessing activities. The sanctions are still in place. Only this year the successful implementation of the 2015 Nuclear and Sanctions Relief Deal has brought some relief.

If the world’s seventh largest oil producing country, Iran suffers as a result, imagine what would be tea greened Lanka’s self brewed ordeal? Or do the die-hards expect a four leaf tea clover to see her through?

But then again, such a bleak scenario is what these politically bankrupt pseudo patriotic pretenders masquerading as the new guardians of Lanka’s sovereignty will dearly wish will befall the land for the ensuing chaos and hardship will throw up new causes for them to thrive on. With defenders of sovereignty like these, who needs attackers?

Whether we like a hybrid court or not, we have to face reality. Wars are no fairy tales and there are no happy endings. Merely because a concerted thrust has brought peace to the land, the nation cannot erase the consequences of the means used to end it. We expect the world to gloat with us in our triumph and atone for our sins. But the law of nature, the force of karmic actions, knows no triumph or defeat. It only knows an equal and similar reaction to every premeditated action. Thus even victory comes with a price tag.

How Fates knocked off Victoria’s rivals until none was left to occupy the throne If a twist of fate brought Elizabeth to the throne of England, then it had been a concerted campaign waged by kismet that brought her great grandmother Victoria to the throne and placed her there to occupy it for a record 63 years which Elizabeth surpassed last week. Here the Fates played an even more remarkable role in securing the crown for her killing off any possible contender to the crown, even before her birth. Consider the remarkable rise from relative insignificance to the pinnacle of the British monarchy of Victoria. Queen Victoria: Rank outsider who pipped the royal favourites VICTIMS 1 AND 2: Victoria’s father was the fourth son of King George the III. In 1817, a succession crisis broke out when the only legitimate grandchild Princess Charlotte of Wales, the daughter of the Prince Regent George, suddenly died. Had she outlived both her grandfather King George III and her father, she would have become Queen of the United Kingdom, but she died following childbirth at the age of 21. The baby boy who would have become the heir to the throne was still born. This immediately brought pressure on Victoria’s father and his unmarried brother Clarence to rush into marriage and produce an heir to keep the dynasty alive. Thus when she was born two years later in 1819, she was fifth in line to the throne after her father, who was fourth, and his three elder brothers. Her position thus was precarious. If her father’s eldest brother, the Prince Regent who would be king produced an heir, Victoria would be shunted further down the line. The birth of two daughters to Clarence, another elder brother of her father, did exactly that. She was now in 7th place. In betting parlance the filly was not ranked as an outsider but as a no hoper. VICTIMS 3 AND 4: But the wives of her father’s eldest brother the Prince Regent and the one next, the Duke of York, were past the age of child bearing. Only the third brother, the Duke of Clarence, who had married in the same year as her father, and would succeed to the throne before him, produced two daughters. The eldest was born in the same year as Victoria and the other was born in the following year. But, alas, both died in their infancy. Victoria was restored to No 5 again. VICTIM 5: Victoria’s father died in 1829 a week after King George had died. The Prince Regent became king as George the IV. With her father’s demise, now she was No 4. VICTIM 6: The childless Duke of York died in 1827. With every death Victoria was climbing up the ladder. Now she was No 3. VICTIM 7: King George kicked the bucket in 1830 and was succeeded by his only surviving brother William. Now Vitoria was No 2 in line to the throne. She became Heiress Presumptive. A special Regency Act was passed in 1830 to make Victoria’s mother the Regent in case William should die whilst Victoria was still a minor. King William, however, did not trust Victoria’s mother’s capacity to act as Regent and told her that he intended to live until Victoria’s 18th birthday so that the regency could be avoided. VICTIM 8: On May 24th 1837, Victoria turned eighteen years and the regency became redundant. King William’s wish was granted. Within a month, on the 20th of June 1837, he died, Victoria became the Queen of England, a position she would hold for 63 years until her death in January 1901. From May 1876, she had the additional title of Empress of India – something the present British queen never had. Thus from being way down the line to claim the British throne, Victoria was inexorably pushed up the ladder to reach the top most rung. Unlike the present Queen Elisabeth the II, Victoria was no mere constitutional monarch reduced to being nothing more than a showy fixture on the British landscape. She came to the throne when Britain had become the greatest empire the world had ever seen, an Empire upon which the sun never set. She was a hands-on Queen. She manipulated political figures and had her prime ministers eating out of her hand and thus became the most powerful woman in the world; and epitomized Britain’s imperial power as she ruled the waves and waived the rules. Funny isn’t it? How Fates favourite child always ends up being Queen of the royal pack?