Surveying the events of the last ten days, it seems to me that the need of the hour is to penetrate the fog of misinformation and fantasy with regard to the consequences of the Geneva Resolution on Sri Lanka, and to make a realistic appraisal of the situation. The point of departure is a clear understanding of the facts.
I would like to set out here eight very compelling reasons why the Government’s action in this regard is, without a shadow of doubt, gravely detrimental to the national interest of Sri Lanka, and why implementation of this Resolution should be resisted with all vigour.
I. Needless and Irresponsible Acceptance of Guilt: Impulse Towards Self-Destruction
The Report of the Human Rights Council contains the strongest possible strictures against the Armed Forces of our country. These are hardly matters of a trivial nature; on the contrary, the Report imputes responsibility to our security forces and police for the most serious crimes recognized by international law. These include mass murder of civilians, rape and gender based offences on an extended scale, kidnapping and abduction leading to unlawful killings, deliberate starvation of the population of the North, and recruitment of children for deployment in war.
The Resolution “takes note with appreciation” of the contents of the Report and “encourages the Government of Sri Lanka to implement the recommendations contained therein”. The Resolution also demands that we give “guarantees of non-recurrence”.
What seems incredible to us is that the Government of Sri Lanka has thought it proper to adopt this Resolution, which inflicts irreparable damage on our Armed Forces and the nation as a whole, as a Resolution of the Sri Lankan Government itself and, for good measure, to call on all Member States of the Human Rights Council to support it. This is precisely what the Government of Sri Lanka has done by co-sponsoring the Resolution.
II. Blame Imputed to the Armed Forces on the Basis of Anonymous and Prejudiced Testimony
The danger to security and police personnel must not be underestimated. The Report which the Government has explicitly associated itself with, calls for “the full range of judicial measures including individual prosecutions”.
No greater travesty of justice is imaginable. We are told that witnesses have testified against our Armed Forces; and the effect of that testimony is as damaging as it could possibly be. And yet, their names, faces and voices are hidden from the world. They remain anonymous; their identity is protected against disclosure. The basic rules of natural justice and fairness are thereby contravened, since those who are accused of the most heinous crimes are denied the opportunity of confronting their accusers and exposing the falsity and iniquity of their charges.
III An Intolerable Indignity Inflicted on the Nation’s Judiciary
The reference in the Resolution to “participation in a Sri Lankan judicial mechanism of Commonwealth and other foreign judges” is a gratuitous insult to the established Judicature of Sri Lanka. A nation which is rightly proud of its legal heritage, and the quality of its judicial expertise, certainly deserves better. It must be noted that foreign involvement is not confined to judges but extends to “authorised prosecutors and investigators” who can also be drawn from foreign personnel.
The question before the public is whether we are content to allow the fate of those who have delivered us from terror, to be decided by the very forces that have pursued this nation relentlessly over three consecutive years.
IV Obvious Bias and Partisanship
The plainest indications of a prejudiced and one-sided approach are manifest on the face of the Report, the implementation of which has been recommended by the Government of Sri Lanka.
While the Government is taken to task for delays in connection with the re-settlement of internally displaced persons, the complexities occasioned by the LTTE’s intricate network of landmines receive only cursory mention. This lack of even-handedness is again demonstrated by the strictures passed on the Armed Forces for “persecution” of civilians in the North, while the LTTE’s atrocities in a range of activities involving “human shielding” are passed over lightly. The Report, moreover, contains the preposterous assertion that the LTTE did not use hospitals and similar facilities in the North for military purposes.
An astonishing degree of malice and vindictiveness characterizes the recommendation in the Report, addressed to the United Nations system and to all Member States, that they should “apply stringent vetting procedures to Sri Lankan police and military personnel identified for peacekeeping, military exchanges and training programmes” – an explicit instance of selective and invidious treatment.
V. A Uniquely Intrusive Approach to Sri Lanka’s Internal Affairs
Going far beyond the Mandate of the Human Rights Council, the Report purports to intrude into vital areas of our domestic policy to such an extent as to make our own Parliament virtually redundant. Among the recommendations to the Government of Sri Lanka are those relating to the nature and scope of deployment of the military in the Northern and Eastern Provinces, total repeal of the Prevention of Terrorism Act and significant modification of the Public Security Ordinance, the abolition of Presidential Commissions appointed by a sovereign country, overhaul of the command structures of the military, far-reaching land reforms, distribution of political and administrative powers within the country, and the establishment of special courts.
Little wonder, then, that the United Nations High Commissioner for Human Rights himself directly conceded, at a media briefing in Geneva, that the Report on Sri Lanka is “rather unique” and “it is for the first time” that a Report of this nature has been prepared by his Office. This is hardly surprising, since no self-respecting country would, even for a moment, contemplate accepting such a Report, let alone co-sponsoring a Resolution based on it.
VI Direct Targeting of the Armed Forces
The contents of the Report and Resolution put Sri Lanka’s Armed Forces in a position of exceptional peril in the most unfair and unprincipled manner. This happens in three ways.
(a) Retrospective Application of the Criminal Law
Robust dislike of retrospective criminal laws, which impose punishment for acts which were not criminal at the time they were committed, is a feature of all legal systems. Nevertheless, to our dismay, the Report goes so far as to recommend the creation, within our country’s penal system, of entirely new offences which specifically target military and police personnel. Cause for particular anxiety is occasioned by the call to “enact various modes of criminal liability, notably command or superior responsibility”.
This is totally unjust, from a moral and ethical standpoint, and is in no way justified by provision in Article 13(6) of the Constitution which, far from permitting criminal sanctions against military personnel who eradicated terrorism, is intended for use in such contexts as the Sepala Ekanayake case involving hijacking of aircraft.
(b) Creation of Ad Hoc Tribunals
It is both sad and ironical that the Government has given its unqualified blessings to the demand for the establishment of special judicial mechanisms to try our military and police personnel. They are, of course, subject to the Rule of Law, but they are entitled, if charged, to be tried by the regular established courts of the land.
(c) Discriminatory Use of Administrative Procedure
We are aghast at the recommendation in the Resolution that, even in the absence of evidence of a quality which would be acceptable in judicial proceedings, there should still be scope for removal of security personnel by resorting to an administrative process. It is even more astonishing that the Government has found no difficulty in accepting this proposal.
VII A Disastrous Global Precedent
If ever there was a Resolution which was deliberately and avowedly country specific, the Resolution on Sri Lanka indisputably falls into this category. Last year, when the Government of President Mahinda Rajapaksa placed before the international community Sri Lanka’s case without fear or inhibition, we secured the result that 24 Member States of the Human Rights Council found themselves unable to endorse the United States Resolution against Sri Lanka (12 voting against, and 12 abstaining), while only 23 supported it.
This year, regrettably, the Sri Lankan Government itself has silenced all the countries which stood by our nation through thick and thin, by taking the initiative of co-sponsoring the Resolution.
VIII Clear Politicization of the Human Rights Council Process
Undue politicization of the Geneva process, detracting substantially from its reliability, has been candidly acknowledged at the highest levels of the United Nations system. A former Secretary-General of the United Nations, Mr. Kofi Annan, made this comment on the Human Rights Commission, the predecessor of the Human Rights Council: “The Commission’s declining credibility and professionalism cast a shadow on the reputation of the U.N. system, as a whole”. He particularly regretted the “credibility deficit” and insisted on compliance in the future with “principles of impartiality, objectivity and non-selectivity”. U.N. Watch observed, in an assessment of the Commission’s successor, the Council: “The Council’s first few years have gone from bad to worse, showing even more selectivity and politicization than that which marred the Commission”.
The cumulative effect of all these considerations underlines the serious damage done to the national interest of Sri Lanka, by the Government’s action in co-sponsoring the Resolution. However, implementation is a matter for the future, and in this regard Parliament and, indeed, the People have a vital role to play. It is devoutly to be wished that they will not be found wanting in this national cause.