The Geneva reminder: the UNHRC is a joke

UNHRC and Sri Lanka

The upcoming UNHRC will very likely vote a resolution against Sri Lanka. The US had made clear it is a procedural on and we can expect India to align itself with the Western countries. What does it mean? Absolutely nothing. This is the masterpiece of diplomacy by US, Europe and India, to support the criminal regime of Sri Lanka. In fact all this manoeuvring in Geneva, all this supposed actions against Sri Lanka, in reality are nothing. The 2013 resolution will be merely procedural: it means it won’t bring any novel fact, only it will require to implement the 2012 resolution. It is the case that 2012 resolution, the big betrayal of India against Sri Lanka, was in fact another joke. In 2012 the US sponsored resolution asked the government to implement the LLRC. Now, LLRC was the recommendations for the government by a committee nominated by the government. As you can image, the most serious allegations and issues weren’t touched even marginally: the LLRC was a toothless instrument.

The focus on LLRC is a diplomatic mirror to elude the reality of fact: the US, Europe and India can confront Sri Lanka on that irrelevant field. Sri Lanka will respond, UN will make more pressure, finally they will find a compromise. Everybody is happy, the West shows it has forgot Sri Lanka, India can say that they fight for the Tamils on the international stage and Colombo can cry on this fake diplomatic defeat.

Can we remind ourselves that the problem in Sri Lanka is not burocracy, or the implementation of a recommendations made by the government to itself, but the serious allegation of war crimes and genocide.

Can someone tell the Tamil diaspora that fighting these risible battles doesn’t make any difference? That if you “defeat” Rajapaksa on this, you are actually losing? Rajapaksa will accept this pressure after long negotiations: do you know that after such compromise, you can’t start to ask something else immediately?

You will win the Geneva vote in 2013 and that will have zero consequence in the process of accountability and even less in the protection of the Tamils in Sri Lanka now.

The Sri Lankan Paradox on Human Rights

The international community faces a curious challenge with regards of Sri Lanka. In fact we are in presence of a massive violations of human rights, happened during the end of the war, not to mention also the continuous incidents of unlawful abductions, suppression of press freedom and abuses from the military and organized thugs. The point of the clash is about sovereignty on internal affairs; the argument from Sri Lanka, China and Russia is that any state is absolutely sovereign in disputes within its borders. The way to deal with internal dissent, discontent or even open revolt is entirely national. So not matter how disproportionate can be the reaction against these dissenting forces, it would be always regulated by internal mechanisms.

The West challenges precisely this notion, that any kind of violence is admissible. But it is a opposition largely on principles. In fact it is always too well known that the West screams loudly against violations of rival countries, whilst with allies and friends the protests are definitely quiter.

People’s unrest in Bahrain has been stopped with brutality
courtesy BBC

The example of Lybia and Syria on one side and Saudi Arabia and Bahrain on the other. You don’t need to be a genius of geopolitics to see that the cases are precisely the same and only a decision of convenience makes them different.

You can consider Sri Lanka as a test. Colombo is leaning very clearly towards the non-Western front of China and the World South (Africa, Asia and Latin America), but is not yet a enemy. And this indecision is becoming an accusation against the West. Evidences of violations and war crimes during the end of the conflict are there. Even the UN, even Ban Ki Mon is (almost) tempted to say something. Satellite pictures, mobile footages, Wikileaks reports are so in front of your eyes that it seems almost a joke their denial.

The killing of civilians in Syrian civil war has been firnly condemned by the West and largely publicized.
REUTERS/Shaam News Network

And now we come to the point. Why it is so difficult to make a move and tarnish Sri Lanka with the same accusations? The main justification is about diplomacy: it will cause more harm than help to the victims and to the refugees, such a direct confrontation. It is better to wait. Why? In Syria and Libya you didn’t need any time to wait. With Saudi Arabia and Bahrain the case is already closed. The supect is that you can really decide whether Sri Lanka is an open rival or a distant friend. Only when it will be sorted out, then you’ll know whether Sri Lanka committed the crimes or not. In other terms the violations are against the alignment with the West, not the human rights.

If you can’t decide whether a violation has been committed or not, because you can’t decide on the alliance, then you reinforce the arbitrariness. The defence of human rights is becoming more and more a soft power of the West against China, Russia and other countries of the World South.

China’s vote in the United Nations’s security council
Xinhua

But rapidly this hypocrisy will backfire. The protection of human rights is a principle; if it can be bent to arbitrary necessity, then it is not a principle any more and countries like China are entitled to see these accusations merely as an intrusion.

The case of Sri Lanka reflects even too much this duplicity: the pressure is directly proportional to its distance from the West. The paradox is that if you raise the tone, the country will quickly move far away, so the necessity of escalating the case will make duplicity even more patent. If you remain silent, you’ll gain “points” in other cases, but then you’ll reinforce the negotiable nature of your battle for principles. This is the paradox of Sri Lanka, that prosecution on its violations will uncover the hypocritical fight of the West.

The solution to paradox is of course very simple: you need to stand for human rights always. It is a principle, therefore is not negotiable. The argument is that those principles are better protected by the West, even when they are violated. I don’t know your opinion, but to me this sounds dramatically unconvincing.

Poor Sri Lanka: a culture of justice cannot be improvised.

Forget the LTTE, forget even the Tamils. If you slaughter tens of thousands of people, if you treat the survivors like animals, if you do respect human dignity, then sooner or later you’ll pay that price. And I’m not talking of resurgence of terrorism. Sri Lankans already have the worst punishment: president Rajapaksa, a despot who rules the country like a private property. Sri Lankans decided to enslave themselves to the ultimate dinasty on the island.

The issue is not about the Tamils. It is about impunity and lack of accountability. Clearly the Rajapaksa administration received a green light by the international community. The UN, the West, India let the Rajapaksas walk away after the slaughter of a city like Vavunya (according to UN)(according to the Bishop of Mannar, in his testimony for the LLRC, it is more likely a city like Kandy). What do you expect after that? Any other murder, any other disappearance is petty crime in comparison. The Sri Lankan citizens, all of them, have forget precisely this simple fact: how can you call for justice, after that?

Any misconduct, from threatening journalists, to assaulting judges, is trivial. Moreover, do you think the right of law can be exercised if you have skipped so quickly any investigation about the end of the war?

The Sri Lankan citizens have been lured by their government, but also by a majoritarian ideology and a guilty sense of ownership over the island, that any dissent can be buried by any means. The LTTE started an armed struggle out of desperation. The leadership of Prabharakan soon spiralled in a vortex of violence for the sake of it; it was a response to the oppression and devastation of the Tamil culture and identity. Most important, the deranged trajectory of the LTTE didn’t represent and include all the Tamils. The elimination of 40 000 human beings is a crime of genocide. Forget Tamil Eelam: if you are a proud Sri Lankan, so proud that you’ll never consider the division of the country, then you must act immediately to seek the truth. To bring justice to human beings and to Sri Lanka, to the good name of Sri Lanka.

Poor Sri Lanka, if you think that killing innocents is a good way to honour your country, if you think that the blood of children, elderly and armless unfortunate, is a good way to worship this Buddhist soil.

Are you really convince that a Buddha will be pleased by this bloody sacrifice, that to hold a flag in his name, you had to rape, torture and massacre thousands? In what kind of hell have you fallen, my poor Sri Lanka.

Nemo se tenetur: don’t hold your breath on Sri Lanka accountability

“Nemo tenetur se ipsum accusare”

There is a juridical principle that is described by the Latin form: “nemo se tenetur detergere (/se ipsum accusare”. The English equivalent is the right to silence. It is a norm dealing with the statements of a person under accusation: nobody expects that you surrender yourself. On the contrary it is always quite suspicious when someone gives himself to the police. You have two cases of self accusation: authentic confessions and mythomania. The latter is when you are seeking attention, inventing your culpability. Only the former is a true, self accusation. It happens when someone did commit a crime, but was under strong psychological stress and after realizing what happened, he regains full control of himself and assesses correctly his position as guilty. On all the other cases, you expect that someone tends to save himself. No judge is really looking for a confession: that’s why even torture was banned. The perpetrator of a crime is not a reliable source, hence you need to build around a system of evidence that will prove his culpability, without his direct admission.

18th Century English Judge Overwhelmed by Criminal Defendants

The English form states the condition of silence: if you are asked directly, you can stay mute, to prevent a formal self-accusation. But I’m intrigued by the Latin expression. “Detergere” means to clean. Therefore the expression has a broader application. The English form implicitly recognizes that the right to stay silent; but if he speaks, he should tell the truth.

The Latin one, instead, alludes to the fact that the accused is not a (complete) reliable source in anything that he says. Because it is a even too natural temptation to save yourself. Even subconsciously! The facts you decide to mention, in opposition to what you ignore, the words you use, the connection you’ll make, everything could be part of a strategy where you are in conflict of interest to reach the truth. You don’t to unmask the facts, you don’t want the clean, real version. You prefer facts as they benefit you. You can expect the accused one to bring the truth, the clean version of what happened.

Mullivaikal Massacre, 2009 Sri Lanka

Now, in Sri Lanka more than 40 000 people have been brutally massacred outside any possible legal framework. In the United Nations, in the USA, in the Europe, everybody recognizes that those people have been killed outside the justification of a war, because they were civilians. There is a responsibility attached to those deaths. In other words we have a crime.

If we have a crime, then someone is responsible for that. It’s not politics, it’s not diplomacy, it’s not Tamil nationalism: it’s logic!

It is pretty clear that the chain of command during the events of the IV Eelam War, must be seen as it follows: the military chief was general Fonseka, his immediate boss was Gotabaya Rajapaksa and ultimately he was responding to the presindent himself, Mahinda Rajapaksa. Either the chain of command has been respected or it was mutiny. The brothers Rajapaksa never complained, so they explicitly endorsed the operations of Fonseka. My conclusion is that the chain of command goes directly to president Rajapaksa. I’m not controversial: everybody thinks the same, the US ambassador, just to mention one. Quoting The Guardian, WikiLeaks cables: ‘Sri Lankan president responsible for massacre of Tamils’, 1st December 2010:

President Rajapaksa and General Fonseka

in a cable sent on the 15 january this year [2010]² the US ambassador in Colombo, Patricia Butenis, said one of the reasons there was such little progress towards a genuine Sri Lankan inquiry into the killings was that the president and the former army commander, Sarath Fonseka, were largely responsible. “There are no examples we know of a regime undertaking wholesale investigations of its own troops or senior officials for war crimes while that regime or government remained in power,” Butenis noted.

I’m sorry if I’m stating the obvious, but when we are discussing the LLRC, the Lesson Learnt and Reconciliation Commission, appointed by the government, to me it is even too clear that as long as Mr Rajapaksa will be in office, there is not a single chance that he will accuse himself. Never ask an accused man whether he is guilty: it’s human nature to appoint a commission that will dodge facts indefinitely. The international community asked to implement at least what your commission recommended. And we needed a UN resolution for that. And now slowly, and with a welcome by the US (and India, I suppose), finally Rajapaksa will comply with his own version. Latin people would say that it is not the clean one.

Sri Lanka:Atrocities without responsibility.The Muttur Massacre case

On Augutst the 4^th or the 5^th 2006, 17 aid workers were killed in Muttur, a town close to Trincomalee. At first the Sri Lankan army denied any involvement. But the Sri Lanka Monitoring Mission, an independent international agency with the mission of controlling the ceasefire. This body war formed after the Peace Talks and its members were primarily from Norway, Sweden, Finland and Iceland, difficult to image more neutral observers.

The Head of the Mission, Swedish Major Ulf Hericsson described the incident one of the most serious recent crimes against humanitarian aid workers worldwide”(source: Huggler, Justin (2006-08-31).” Europe accusses Sri Lankan army of assassinating aid workers”, The Independent, UK London) and clearly suspected of governmental forces. The Organisation >u>“University Teachers for Human Rights”, that distanced and criticized both the LTTE and the Sri Lankan government for atrocities, released a report about the massacre. I strongly invite everybody to read it, because it is a vivid testimony of the struggle to bring justice in Sri Lanka and it is as well a good work of investigative reportage. The government maintained that the killing happened early in the morning, when the perpetrators should have been the LTTE. Patiently putting all the pieces together, the report is convinced that the massacre was committed later, in the evening of the 4th or in the morning of the 5th, when governmental forces were in control of the area.

Here I’ll quote the result of their investigation:

“On 4th August 2006 17 aid workers were extrajudicially executed in their Action Contre la Faim (ACF) compound in Mutur town. Through blatant cover up by the Sri Lankan authorities, their experts, Attorney General and diplomats overseas the facts of killings have been suppressed along with any potential association between this massacre and the killing of five students on the Trincomalee foreshore on 2nd January 2006.

Muttur Massacre.
From the Sri Lankan Guardian

With the support of individuals equally interested in bringing out the truth and finding justice we have uncovered information that reveals that the 17 aid workers were killed by at least one member of the Muslim Home Guard (Jehangir) and two police constables (Susantha and Nilantha) in the presence of the Sri Lankan Naval Special Forces. Four different types of guns were used. Evidence suggests that the killers had prior approval from ASP (Sarath Mulleriyawa) and OIC (Chandana Senayake) for their vile enterprise. But it is highly unlikely that the ASP and OIC would have taken a reckless approach or that they had any particular reason to want the aid workers killed and they had earlier received orders from Trincomalee to ensure the safety of the aid workers. We believe they may have received an instruction from their superiors in Trincomalee (namely the DIG Rohan Abeywardene and SSP Kapila Jayasekere) that the aid workers should be killed. The commandos must have been informed by their superior to let the killings take place and may be directly responsible for firing the bullets that killed at least one of the aid workers.”

The course of justice has been impeded many times, with disappearance of evidence, perjury down all along the hierarchy of the Attorney General’s Department, the Police, with the government promoting people involved instead of punishing them.

In September 2006 President Rajapaksa launched a commission to investigate the case, remember one the most “serious recent crimes against humanitarian aid workers worldwide”. The Sri Lankan government stated that they don’t need foreigners expertise to carry on this inquiry. They rhetoric of:

”We have our Supreme Court, our judges, our own Police Force, Attorney General, forensic pathologists and ballistic experts. We don’t need foreign help in investigations that are progressing well’.”(from the UTHR report)

This is really a lesson to be learnt and is that the commissions for reconciliation are dead tracks. The killing of 17 aid workers don’t have a responsible: Do you think that the massacre of 40 000 will?

The share of the blame, the Olympic case: endorsing the international exposure of Sri Lankan President Rajapaksa equals to be accomplice in his crimes.

Mahinda and Gotabaya Rajapaksa
couretesy AP

At present it is difficult to condemn the perpetrators of 2009 crimes. Three main reasons for that: first geopolitical, China clearly backs up in the security council and any enforcement from the United Nations is deemed to fail. Second, India silently but effectively supports Rajapaksa and has no intention to mine his grip on power. The third reason is theoretical: it is not advisable to charge with such accusation the chief of a State democratically elected. He may be guilty, but it raises a problem of opportunity, because the person also represents the executive power of his country. It is very complicated to start a trial in this conditions with a potential undesirable outcome: should he be condemned, how can a foreign judicial force impose its authority on the internal matters of a sovereign state?

It is not a surprise that even if the governments in the international community are well aware of what happened (see the Wikileaks’ report about the US ambassador in Colombo), it is arduous to implement any step in that direction, under the present circumstances. When Rajapaksa won’t be in office anymore, then concrete moves towards an international accountability can be taken. How long it will last and how fair is to wait for that moment in respect of the victims, is a hard and legitimate question.

But we are faced with even more problematic issues now. In June 2012 president Rajapaksa has been invited by the Queen to attend the Diamond Jubilee (to be fair, he wans’t the only desputable presence: the monarchs of Baharain, Saudi Arabia were invited after bloody repression of public protest). Few days later he met the Pope in Rome. More recently it has been discussed his presence during the Olympics. At the end he didn’t show up, but the issue stands and the problem is the international role of President Rajapaksa.

Precisione for the reason we stated earlier, it’s complicated to judge the chief of the executive power, while in office. But contrary to the image of confidence that he is keen to project, he is aware of walking on the edge. His position is delicate; surely time is on his side, the more it passes the greater the chances to relegate to history the judgement of the war crimes.

President Rajapaksa and the Secretary of the United Nations Mr Ban Ki Moon

But the threat is there. This is the reason for Mr Rajapaksa to seize any opportunity of international visibility. The media exposure that accompanies any politician, in his case has an even more literal meaning of survival. In fact any time he is photographed and associated with other head of state, like in the case of the queen or the pope, he is scoring more points in his favour. The queen and the pope, pretty much like anybody else, know very well what happened. And yet, accepting his presence his a subtle, implicit endorsement of his legitimacy. Now, he is without any doubt the legitimate head of state of Sri Lanka. But his government is patently guilty of crimes against humanity.

President Mr Rajapaksa and the Queen Elizabeth II

Clearly will be more than an embarrassment for the queen and the pope, an eventual condemnation of Rajapaksa. Will they say they didn’t know? They were misinformed? So, on side, just his presence is an active, implicit endorsement of his policy.

Now we are coming to the episode related to the Olympics. As we speculated, Mr. Rajapaksa desperately needs to participate in this international events. The Independent few days before the inauguration of the Olympics, considered highly probable his presence. A public outcry and the Tamil diaspora machine already in move stopped him. Subsequentely in article of the Island, clearly delivering a governmental message, was mocking the reaction of the Tamil community. I think that the reality is different. Rajapaksa is struggling to participate, but his presence wasn’t considered appropriate. I think his presence is not appropriate anywhere, until proper and fair accountability of those facts will be delivered.