War crimes or political solution? 

By Izeth Hussain-September 25, 2015, 9:32 pm 

Once again the battle is raging in Geneva about the problem of war crimes in Sri Lanka. I believe that there is a sub-text to that battle, namely the problem of finding a solution to the ethnic problem. Some time ago I wrote an article on the Ban Ki-moon conspiracy, a tripartite one involving the US, India, and the UN Secretary General Ban Ki-moon to use the threat of war crimes investigations to promote a political solution to the ethnic problem.

I emphasized that it was a "benign conspiracy" meant to serve the best interests of both Sri Lanka and India. Later when India surprisingly voted together with the US for a Resolution regarded as inimical to the Sri Lanka Government, it seemed that my postulate of a conspiracy was being substantiated. The important point is that on that occasion there was an abrupt volte-face on the part of India: it broke with its hallowed practice of never supporting country-specific Resolutions at the UNHRC. At present we are witnessing yet another volte-face, this time on the part of the US. Last year it was enthusiastic for an international war crimes investigation, but now together with the SL Government it favors a purely domestic process. What is the explanation for this volte-face? Last year under President Rajapaksa there wasn’t the slightest prospect of a political solution, whereas there is now at least a reasonable prospect for it. So it does seem that the threat of an international war crimes investigation was meant to propel the SL Government towards a political solution. The sub-text of a political solution is more important than the text of war crimes.

But, is the benign conspiracy still afoot? The question arises because there has been a change in the Indian leadership since the time of the initial hatching of the conspiracy. Prime Minister Narendra Modi is a much tougher character than that Oxbridge gentleman, Manmohan Singh. During his visit to Sri Lanka Prime Minister Modi outspokenly advocated federalism, which was undiplomatic because he knew full well that for the majority of the Sinhalese federalism remains an F word. Furthermore, as a devotee of the backward tribalist ideology of Hindutva, he went out of the way to affirm the Hindu commonality of the Sri Lankan Tamils and the Hindus of India. All that tended to upset many Sri Lankans. We must note also that although the TNA and the GTF have been admirably moderate in their statements in recent months, they are strongly supportive of the outrageous proposal for a hybrid war crimes tribunal. So, we cannot assume that India would go along with the US at the UNHRC.

But, I find it very difficult to believe that the US is acting unilaterally, without an understanding with India and regardless of Indian interests, in backing Sri Lanka’s proposal for a purely domestic process. According to the way big powers think, Sri Lanka belongs to India’s sphere of influence. Therefore the US would not want to do anything about the ethnic problem that might seem inimical to India’s legitimate interests. Furthermore, from the time the Soviet Union withdrew from Afghanistan the US has been building up a special relationship with India. The major objective is of course to counter China. Consequently I would expect some sort of understanding with India behind the US resolve to support a purely domestic process. That could become a major factor in shaping a Resolution favorable to Sri Lanka on September 30.

In any case – quite apart from the US-India factor – I find it very difficult to believe that a Resolution to set up a hybrid war crimes tribunal can succeed at Geneva. The Report released by the Office of the UN High Commissioner for Human Rights contained the recommendation that the Sri Lankan Government should "adopt a special legislation establishing an ad hoc hybrid special court, integrating international judges, prosecutors, lawyers and investigators, mandated to try war crimes and crimes against humanity, with its own independent investigative and prosecuting organ". This seems bizarre in the extreme to me. We are required to take action, including the making of constitutional changes, to set up an institution that will erode our sovereignty to a very serious extent. Which government in its right mind will agree to any such recommendation? But of course the recommendation would not be bizarre if there is the assumption behind it that punitive action in the form of sanctions would follow if the government rejects the proposal. That might have applied to the Rajapaksa Government, but not to the present one. Anyway most of the members of the UNHRC will have reason to fear erosion of their sovereignty and therefore a resolution based on that recommendation is hardly likely to succeed.

So, the likelihood is that the UNHRC will adopt a moderate watered-down Resolution that will not be inimical to the SL Government. What conclusions can we draw from that fact? It shows that even in an institution that has been established specifically to promote human rights, such as the UNHRC, politics count for more than human rights. I am not denying that the movement for human rights has increasingly become a redoubtable revolutionary force after 1945. Nevertheless when the representatives of States get together, politics have greater weight than human rights. Under President Rajapaksa, who was seen as cynically intransigent on the ethnic problem and as unsatisfactory in many other ways as well, a tough resolution could have been expected. Under President Sirisena and Prime Minister Ranil W, who could really move towards a political solution and are acceptable to certain powerful countries, a moderate resolution might be expected. So at the UNHRC it’s the politics and not the human rights that really count.

But more could be involved in the goings-on at the UNHRC than the mere cynical manipulation of political interests. Behind a moderate resolution there could be a genuine concern for the legitimate interests of Sri Lanka. Consider what could happen with a resolution echoing the bizarre recommendation that I cited earlier. Soldiers who have been regarded as heroes and saviors of the nation could be convicted as war criminals. Thereafter they could be imprisoned or become fugitives from justice or cross Sri Lanka’s frontiers only at the risk of being subjected to universal jurisdiction. How would the armed forces, accustomed to regard themselves as saviors of the nation, react to all that? What might be the unforeseen consequences? And how would the Sri Lankan people react? Would they see the nation as under serious threat again, and would that facilitate the return to power of the forces backing MR ahead of election schedules? Thereafter relations with India and the West could become much more troubled than in the past. Such considerations could weigh with the US in backing a purely domestic process. The US and other Western powers know full well that social action and political action usually have unintended consequences, and those consequences can be very terrible – as in the Middle East. No one can be quite certain of what might be the consequences of a tough resolution on Sri Lanka.

izethhussain@gmail.com