By Major General Nirmal Dharmaratne [retd]
A glance at the last four decades of the military history of Sri Lanka reveals an agonising period for its citizenry. From 1983 to 2009, the national question that remained unresolved in this country was separatist terrorism. In 1987, it was transformed into a hybrid threat with the emergence of the JVP insurrection which was suppressed in 1989. Since then until the LTTE was militarily defeated in May 2009, the dominant national challenge was the war, which security forces fought against the LTTE terrorists. These issues that endangered the national security were politically capitalised and influenced the internal power shifts and thus the creation of international opinion on Sri Lanka.
Since mid-2009, Sri Lanka has been facing another hitherto unresolved problem – war crime allegations, particularly during the last phase of the armed conflict, against Sri Lankan armed forces by the UNHRC under the influence of some powerful western nations. This issue impedes the country’s development and also tarnishes its reputation as a nation that values and upholds rule of law, democracy and respect for diversity. Hence, Sri Lanka’s most threatening and smouldering issue is the allegations of human rights. Solving this problem is a high priority for Sri Lanka.
World politics and human rights
The western powers’ dominance of international institutions such as UNHRC and ICJ and their use of these institutions as tools to force specific nations to come to terms with them are a part of global power politics. There have been several resolutions in the UN against Sri Lanka, since the end of the internal armed conflict. These resolutions include 19/2 of March 22, 2012, 22/1 of March 21, 2013, 25/1 of March 27, 2014, 30/1 of October 1, 2015, 34/1 of March 23, 2017 and 40/1 of March 21, 2019.
On May 23, 2009, the then UN Secretary General Ban Ki Moon called for protection of human rights in Sri Lanka. Then on May 26, 2009, Resolution 11/1 was adopted. In June 2010, the UN Secretary General appointed a ‘Panel of Experts’ to study and submit recommendations on Sri Lanka. In September 2015, the UN released a report, known as the OISL report.
In response to these, the Government of Sri Lanka appointed three presidential commissions, namely the ‘Lessons Learnt and Reconciliation Commission’ (LLRC) in May 2010, the Paranagama Commission in August 2013 and the Udalagama Commission in October 2015. Of the three, the LLRC was accorded some credibility by the UN which insisted that the government implement its recommendations.
The latest resolution and TGTE
On March 23 this year, the UNHRC adopted Resolution A/HRC/46/L.1 on Sri Lanka at its 46th session. The main outcome was that the UN will create an office with an annual budget of USD 2.8 million to collect information about war crimes and crimes against humanity alleged to have been committed in Sri Lanka. Although, it does not impose any sanctions on Sri Lanka, this could be seen as a step to take Sri Lanka to an international tribunal.
The resolution was presented by a core group of countries led by the United Kingdom with the influence of the Diaspora-led Trans National Government of Tamil Eelam (TGTE), which seeks to establish Tamil Eelam in Sri Lanka. Hence, TGTE is the new enemy of Sri Lanka.
The question is whether the TGTE will be content with perpetrators, as they refer to them, being taken to task. NO – this will not serve its ultimate objective of creating the State of Tamil Ealam. Therefore, it is most likely that the TGTE will press for a plebiscite to decide the opinion of the majority of the people in the North and East of Sri Lanka. This may happen even without the cooperation of the Sri Lankan state.
In Sri Lanka’s case, it is beyond doubt that both the evidence and the argument belong to the prosecutor, in the form of LTTE sympathizers and the TGTE. Nothing is in favour of the defendant, the Government of Sri Lanka (GOSL). Since the evidence forms the building blocks of any investigative process, there is no doubt that Sri Lanka will be in trouble in the event of such a scenario.
In January 2021, UN Human Rights High Commissioner Michelle Bachelet released a report on promoting reconciliation, accountability and HR in Sri Lanka. The key accusations in this report are Militarisation of Government Functions, Reversal of Constitutional Reforms, Political Obstructions, Majoritarian and Exclusionary Rhetoric, Surveillance and Intimidation and Exacerbating Human Right Concerns. The GOSL has its explanations to these allegations and justifications to its actions which the UNHRC has recognized as irregular.
War heroes the main victims
In the conclusion of its report, the Human Rights High Commissioner has threatened to refer the case to the International Criminal Court. In the unlikely event if this becoming a reality, would the State support the defendants, the military commanders who have been identified by name by the UNHRC? This list will inevitably include many serving and retired members of the Sri Lankan Armed Forces. The majority of them will be from the Army.
The question which arises is whether the State would support those being accused. Support in this case will entail representation, legal assistance and evidence. In the rare case of these officers being tried in international courts, it is simply unthinkable that they could prevail without the state’s support.
The other question which raises concerns is the evidence. If the war heroes are prosecuted will they have access to the evidence?
Consequent to the adoption of the UNHRC resolution 30/1 in 2015, the Army Headquarters appointed a committee to study it and submit recommendations. One of the recommendations of that committee was to set up a separate cell under the Directorate of Legal Services to keep all evidence in record so that any Army Officer could refer to them if needed.
Our country has a history of facing a similar situation during the period of 1988 to 1990. There were widespread allegations of human rights abuses committed by the security forces against JVP cadres and Sri Lanka found itself under scrutiny by influential international actors. The government that came to power in 1994 activated legal action strictly against a handful of members of the Army. Some were unfortunately held scapegoats and were imprisoned. The outcome was that the country saved its image and regained its reputation internationally.
LTTE culpability and UN bias
It is disappointing that since the first salvo was fired by the UN against Sri Lanka in 2009, no punitive action has been considered against remaining LTTE members and pro-LTTE organisations among the Tamil Diaspora.
The UNHRC continues to state that crimes were committed by both parties. However, it has not expressed willingness to take action against those responsible for crimes committed by LTTE. For instance, Adele Balasingham, who played a key role in the women’s military wing of the LTTE, is left scot-free. If the UNHRC is impartial, it could proscribe LTTE front organisations abroad. The UN can even ban their actions such as rallies. However, none of these measures has been taken or considered. This gives the impression that although the military capability of LTTE was wiped out in Sri Lanka the threat of Tamil Eelam still exists outside the country’s borders. As such, there remains a threat to Sri Lanka’s national security.
Equality before the law is a question which must be raised. If a legal process is to be instituted, justice must be even handed. The questions of bias and equality before the law must be enforced and instituted as part of the process.
The way forward
This problem has dragged on to this day and has risen to this magnitude largely due to the failure of Sri Lanka’s foreign policy and the performance of its diplomatic missions abroad. This can be attributed to the factors such as the absence of a coherent foreign policy, a strategic plan, lack of coordination and will. Unqualified and incompetent diplomatic appointments to key offices in key countries by governments have made things worse. Those bureaucrats who formulate the foreign policy for Sri Lanka should be thorough of the geopolitical concerns of the world and should make their recommendations realistic, workable and sustainable, but not to appease their political masters.
Disunity among Sri Lankans has made it easier for outsiders to cause problems. One root cause is the bitter division between the various groups supporting Field Marshal Sarath Fonseka and the Rajapaksa family. The other root cause is the prevailing and continuing gulf between the major political parties.
By analysing the past events, it doesn’t look as if either party — the GOSL or the UNHRC — has deviated from its stand despite more than 11 years lapsing. The UNHRC continues to insist that the GOSL should respond to the allegations while the GOSL vehemently condemns the allegations as false and unsubstantial.
As a result of the prevailing situation, there will be no progress. Just as the Eelam War was used as a tool for political parties to point fingers at each other, this effort to combat HR allegations too has become a subject of political infighting.
This problem must be solved within the next five years, failing which it is uncertain that any future government or any leader will be committed to safeguard the defendants. Even at present some Sri Lankans say if there are those who have done a crime, then they should do time. Those who think so may be suspecting that the so-called war crimes were actually committed by the forces. They do not believe that most of these allegations are lies, exaggerations and malicious propaganda. However, not knowing the true facts they make such comments. Therefore, it is quite possible that the next generation of Sri Lankans, who will have no idea of what exactly happened, may betray the war heroes.
A possible solution
To drive Sri Lanka out of this dark cloud, it must be left to be handled by an independent entity. As such, a separate Independent National Task Force (INTF), similar to the former Peace Secretariat, would definitely see progress but it should be completely APOLITICAL, granted with a clear mandate and a definite time frame, with a reasonable budget. This INTF must be composed of, apart from legal experts and multi-ethnic learned representatives from the civil society, at least a couple of senior retired military officers who would represent the interests of the armed forces.
The INTF should not only be countering the allegations against the state but also be proactive by presenting a Counter Resolution and getting the UNHRC to react.
The INTF should be the apex body which will keep in custody of all the evidence, both in support of the state and in support of the counter resolution. It should continue to collect, consolidate, analyse and preserve information and evidence.
It may be reporting to and taking guidelines from a top legal official such as the Attorney General or the Chief Justice, but not from any politician. Such a Task Force may directly engage with the UNHRC. Only then, would no political party be able to claim credit for its achievements or face the blame for its failures. Only then would it also be acceptable to the outside world.