Editorial

“The Americans eventually get it right – after they have exhausted all other alternatives,” said Winston Churchill. The British wartime Premier was disappointed that the US did not take part in the early years of World War II. When they finally entered the fray and saw to the war’s conclusion, he would famously acknowledge that the US — eventually got it right.

Today, we see the US strenuously trying to get it right vis-a-vis Sri Lanka. Having publicly announced only a few weeks ago that it had come to some consensus with Sri Lanka to forge a ‘domestic mechanism’ with an element of foreign technical support to investigate allegations of purported violations of International Humanitarian Law in the country’s armed conflict, the United States seems in a quandary. How to respond in the face of last week’s harsh substantively unsubstantiated United Nations Human Rights Council (UNHRC) report on Sri Lanka’s conflict and submit an amended resolution to the 47-member Council for voting on Wednesday (September 30)?

From all available accounts, Sri Lanka’s so-called friends — certain nations from the European Union, are the stumbling block. Some of them were extremely sympathetic to the LTTE terrorist organisation in its heyday and are now bogged down by the weight of a vociferous section of the Sri Lankan Diaspora in those countries, hell-bent on recrimination and least interested in reconciliation.

The President is currently at the UN’s headquarters in New York eager to show that Sri Lanka has a ‘human face’ at the helm. His message is that there is a democratic pro-West Government in Sri Lanka that takes human rights seriously. It is a welcome policy of engagement with the US, something the previous Government consistently refused to do (the hiring of lobby firms we now see was a bogus attempt at money laundering) — and for which, this country is paying dearly.

US diplomats are trying to fix a brief exchange between the two leaders on the sidelines of US President Barack Obama’s annual reception at the UN. But US foreign policy has several players. Though the White House has much bigger issues on its plate, the State Department is showing great resolve to work out a favourable solution to what has become a ‘hot potato’ before the UNHRC. On the other hand, ‘bleeding heart’ human rights activists having the US President’s ear and different Congressmen from Capitol Hill have also to be contended with.

The US seems to have watered down the first draft of its new resolution after the Sri Lankan Government made some changes to it. It complied with the Sri Lankan Government’s request to get Colombo’s approval for the resolution not to be put to vote. The new draft removes the offensive words “hybrid mechanism” to denote the investigations into the Sri Lankan armed conflict would be a semi-international one. The new draft is at pains to avoid the terminology, but for all intents and purposes when it refers to “Commonwealth and foreign judges” and “authorized prosecutors and investigators”, the die is cast. The investigation that is proposed is going to have a foreign element to it.

This virtual ‘hybrid mechanism’ is fraught with constitutional, legal and political minefields. Those who have recommended it clearly have no clue what it portends. Foreign investigators, foreign prosecutors and foreign judges will be up against constitutional roadblocks and major legislation reform. The entrenched provision in our Constitution, will probably need to be changed to bring what is an international criminal body that is being contemplated, to domestic law. There is a view that some of these entrenched provisions such as Articles 3 (sovereignty of the people) and 4 (the judicial power of the people which shall be exercised by Parliament through courts) will require a referendum of the people. Article 105 sets out the types of courts in Sri Lanka and what has been recommended is not among them. On the other hand, there is no bar, technically, for a non-citizen to sit on any legal tribunal already set up in Sri Lanka.

The legal wrangles will persist. What of the political fallout for the nascent Government? It is almost as if the proponents of this drive for accountability are desperately keen to give the previous regime a leg up for its return to office. One might pardon the UN experts for their ignorance of the groundswell of public opinion in this country. They have done what they believe is a preliminary investigation based on ex-parte evidence requiring further examination. It is up to the US to recognise the undercurrents in the bigger scheme of things.

The visiting German Foreign Minister got it right. In Colombo this week, he pointed out that a “one-size fits all” policy and “using the same cookie-cutter” does not necessarily work in these circumstances. Take the Cambodian War Crimes tribunal. There, the Government invited the UN to probe the 1970 Pol Pot atrocities. What has the UN to show from that ongoing exercise? It has become a waste of time, waste of tongue and waste of money except for the prosecutors and the UN civil servants.

The world has, no doubt, moved from the ancient jurisprudence of ‘Inter-arma enim silent legis’ (laws are silent during times of war). But there is now the selective use of International Covenants and Conventions against nations based on geo-political considerations rather than a genuinely holistic approach.

The draft US resolution in places smacks of irony, if not so tragic. The need to investigate sexual crimes: the US has one of the highest sex crimes rates in the world and the people of Okinawa are clamouring for the closure of US military bases on the island after several rapes committed by Americans stationed there. There is a call for States to ensure that combating terrorism complies with international human rights law — the Pentagon could note that, planning bombing raids on ISIS and Taliban targets.

The war-ravaged North of Sri Lanka can do more with the money – than the words this hugely time-consuming, dangerously political, exercise in Sri Lanka will churn out. In the long term one can only visualise a hindrance to reconciliation and a re-opening of old wounds rather than a healing.

This does not mean that the conduct of the war need be a closed chapter. Already in the different courts in Sri Lanka there are cases pending. These must be expedited. The Government has offered to open an Office for Reparation for Victims, long overdue, and this need not be limited to one community alone. Sex crimes investigations must be prioritised.

The International Community pre-judged the commissioners of the Lessons Learnt Commission (LLRC) as lackeys of the then President only to praise their report later. Sri Lankans there are, still resolutely upright, independent and fair who dispense justice in this country.

As for the US, if it does not want a recurrence of what happened in Sri Lanka it must have a word with India that started it. Now, having begun this process in Geneva, they will have to assess the bigger picture. Will they get it right, eventually?