By Dr. Dayan Jayatilleka
"You never empower the perps, no matter how many aces they’re holding"
Dave Robicheaux in James Lee Burke, ‘The Tin Roof Blowdown’ (2007)
Let’s confront the issue of "war crimes" and all that jazz. In the first place, where is it an issue and among whom? Hardly among the states in our neighbourhood or on the continent to which we belong. Is that because the standards of democracy are lower in Asia than elsewhere? It is true that in Asia, democracy is not always equated with liberalism, and there is sometimes differentiated from it, but that is a legitimate and fairly old debate in political theory and practice.
No, the more understanding attitude that Asia displays towards Sri Lanka is because neighbours know best the reality of what happened, what was at stake, the dangers of dismemberment and the dynamics of external interference and intervention which use ‘rights’ as the entry point. Asia has had two searing collective experiences, colonialism and Cold War imperialism, and is therefore painfully aware of the value of national sovereignty and strong states.
Secondly, let us define the issue of war crimes. Is the denial that they were committed, a bland assertion that no civilians were killed? What a rational minded Sri Lankan rejects is the charge or the insinuation that civilians were intentionally targeted by the Sri Lankan armed forces, in the final or at any stage of the last war, and that any civilian casualties incurred derived from the disproportionate use of deadly force, given especially the character and capacities of the enemy. Civilians are hit during almost every single strike by Predator and Raptor drones, but that is neither intentional nor the primary target, and decisions have been made that the strikes were not a disproportionate use of force in the circumstances.
The prospect of civilian casualties when administering the coup de grace to a terrible enemy must be weighed against the civilian deaths that would result if that coup de grace were not administered and the terrorists lived on to regroup and re-launch operations. Every drone strike is fraught with such considerations. Sri Lanka’s war, which did not take place on foreign soil, entailed precisely such considerations and calibrations. Sri Lanka’s final offensive was to terminate a thirty year conflict which would have gone on for another thirty had the enemy not been liquidated utterly, like the Nazis they resembled. In that sense it was a Predator drone strike writ large; magnified or multiplied.
If so, why not accede to an impartial international war crimes inquiry? Let us, in the first place, dispense with the equation of the ‘impartial’ and the ‘international’. The WikiLeaks revelations have shed light on the complicity between the UN inquiry into the killing of Lebanon’s Rafik Hariri, and superpower agencies.
A summary of an article by Dyad Abu Jahjah in Open Democracy, founder and former president of the Arab European League reads: "Who has benefited most from the assassination of Rafik Hariri? As the UN special court on Lebanon arrives at its version of events, one Lebanese reading finds confirmation in Wikileaks for pointing us in a different direction" This author of several books on the Middle East cautions that "...It is in this context that one must read the actions of the international tribunal investigating the death of Rafik Hariri and the indictment of Hezbollah that it will be releasing shortly...The efforts of the international tribunal for Lebanon that is housed in the Hague are now focusing on framing Hezbollah for the deed. This is done through engineered telecommunication evidence that implies that a Hezbollah network of operatives conducted the operation...The United Nations special court on Lebanon has from its inception been a political tool in the hands of the powerful. It is now being used to create a pretext to destroy the Lebanese resistance...When the indictment will be issued in the coming weeks (maybe days) things will take a dangerous turn in Lebanon. ..The web of lies is being drawn again, and soon the media will be telling us that it is a Sunni/Shia war that is the background to the problem, and that Hezbollah and behind it Syria and Iran want to seize control of Lebanon." (Dec 7th 2010, http://www.opendemocracy.net)
Those who sermonise on the need for a war crimes inquiry to restore international credibility, simply must pause to ask themselves why the person most qualified to do so, Judge CG Weeramantry, has so far chosen not to lend his voice to this slogan. Is it that he is morally and ethically inferior or of lesser courage than those who vociferate, or is it that he is possessed of far greater wisdom? A probable explanation is that he is fully aware of the realities and complexities of international inquiries, the way in which the dice is loaded against the Third World, and that each society deals with these issues in their own way and in their own time.
Why has Cardinal Malcolm Ranjith who aired his critical dissent on ’56, and ’72 and recommended devolution at the LLRC, praised the country’s political leadership for ridding the country of terrorism and restoring peace, rather than joining the chorus insinuating that war crimes were committed and calling for an international investigation into war crimes allegations?
There is hardly anything that the incumbent administration can do to or for either Cardinal Ranjith or Judge Weeramantry. It is far more likely that they are sensitive to the unhealthy, lacerating consequences for polity and society of such externally propelled or induced inquiries in the aftermath of a popular war, experienced widely as one of emancipation and national reunification. Any such process must incubate and mature within each society. It is the society, the public and the nationally specific historical process in question that can legitimately and successfully call forth such a settlement of accounts though a great many societies choose to let the wounds heal, the social scar tissue to form and other forms of therapy, individual and collective to do their work.
The UK took 38 years and two commissions to issue a report into a massacre that took place in broad daylight on bloody Sunday. Spain initiated prosecution of its top prosecutor for seeking to open up the Spanish civil War, and that curtain of silence has done that country no harm— indeed it forestalled a military backlash and civic polarisation which could have impaired the transition to its vibrant democracy. The invocations of parallels from South Africa, Cambodia and Central America are ridiculous. In Cambodia, it is the commanders of the defeated Pol Pot forces who are being prosecuted, not the forces of the state that defeated them, led by Hung Sen. In South Arica, the Truth and Reconciliation Commission was in the context of a negotiated, peaceful transition from minority rule to majority rule, not a panel which sat in the aftermath of a war waged by majority rule against a secessionist attempt at minority rule. The Central and Latin American experiences of transitional justice issued from negotiated peace settlements between guerrillas and governments or transfers of power from military juntas to civilian democracy (many of which entailed amnesty and immunity from prosecution for the military).
Sri Lanka belongs to none of these categories. The Premawathie Manamperi case is no precedent: that was a deliberate, eye-witnessed atrocity committed in a space held sacred by two communities, during a Sinhala-on-Sinhala civil conflict between the state and a rebel movement in its initial romantic incarnation. The emotions and social psychology that prevailed post 1971 and that which prevails now after a thirty year war of ethnic separatism (including memories of massacres of samaneras) are drastically different. The reality is that there was a social consensus for the prosecution of that crime but there is none for turning on this or that soldier, less than two years after a long sought and hard fought victory. Such action would tack dangerously against the national zeitgeist.
I have watched some of the videos which claim to reveal war crimes. Belonging as I do to the generation that recalls the visuals of Col Loan of the South Vietnamese police draw and fire his revolver into a the head of a captured Vietcong suspect during the Tet Offensive, a TV cameramen being shot dead by a Somocista Nicaraguan National Guardsman while lying on the ground, and the indelible scenes from Srebrenica or the footage of mass executions from the camera of the carrier based US warplane over Bosnia, I can tell a smoking gun when I see one. From what I have seen, the Channel 4 videos do not fall into that category. By contrast, what they do remind me of are the Tonkin Gulf incident (the North Vietnamese gunboats that supposedly ‘attacked’ the USS Turner Joy, but actually didn’t), the manufacture of consent for Kosovo and the Iraqi WMDs that weren’t.
Ever heard the term ‘revanchisme’ (or simply, revanchist)? It means revenge seeking, and originated with reference to fascist or pro-fascist groups seeking revenge for their defeat by the Allies in World War II. The Sri Lanka hating element of the Tamil Diaspora is in a revanchist mode, drawing support from those in the international order who seek revenge from us for ignoring their edict to stop the final assault on the Tigers. They are waging a global psychological war against Sri Lanka.
We are being set up. We are being framed and then asked to prove our innocence by submitting to an external inquiry, at a time and by entities other than of our own choosing. That’s a violation of sovereignty and of our national self determination. We must not fall victim to it. That this is not reducible to a merely a pro-regime view and is in fact the subject of a broad consensus is evidenced by the explicit remarks of the most popular personality in the Opposition and in every likelihood its incoming leader, in a recent interview given to Raisa Wickremetunga of the (hardly pro-government) Sunday Leader.
"Q: You said in Parliament that war crimes had only been committed by the LTTE. What is your comment on Deputy Leader Karu Jayasuriya’s interview published in a weekend newspaper?
A: I’m not privy to the context and circumstances in which Karu Jayasuriya’s pronouncement or statement was made. I don’t know the minute details. I’ve always maintained my stance. This didn’t grow from yesterday or the day before. It was my policy decision right from the beginning and will remain so. This proposal was put forward by myself in fact, and has become party policy; to protect the armed forces and the defense establishment that so courageously annihilated the LTTE after more than three decades.
Q: In that sense, you condemn the UN war crimes probe?
A: As far as war crimes are concerned, I don’t think the UN has taken a balanced approach. It has taken a partial discriminatory approach when it comes to the defense establishment. The UN is supposed to be impartial and balanced, not politically prejudicial and discriminatory. I admit the UN performs a magnanimous role in making society healthy and peaceful, but I have great reservations on its motives and actions on the war probe." (Sajith On The Constitution And War Crimes, The Sunday Leader Dec 12, 2010)
Thus, on the issues of sovereignty, war crimes allegations and the defence of those who defend us —our armed forces —there is hardly any daylight between government and opposition. This is as it should be. As a society and a country, we must not close up or close off; we must remain open to the outside world; but as a state we shall not succumb, be suckered into sacrificing our sovereignty or committing suicide.