In the political discourse of this country, any call for an investigation into alleged war crimes in the final phase of the Eelam war is blasphemy. Any word in support of such a probe is the ultimate act of treason as per government speakers in endless political talk shows and other political events. Such pronouncements, asserted ever so often have set the limits of the political debate, in which any reference to a war crime probe is a taboo.
But, last week, none other than the architect of the military victory against the Tamil Tigers, former commander of army and the chief of defence staff Gen Sarath Fonseka said he would investigate the allegations of war crimes if elelcted President.
“If there are doubts it will be good to clear them,” General Fonseka, launching his presidential bid, told reporters last week.
He said that investigations ought to be based on clear and specific evidence and not based on mere allegations.
That is a double edged sword for Fonseka, who himself oversaw the military operations. Whether he really meant it when he said ‘I will investigate war crimes’, or whether it was a political gimmick is also to be seen.
Either way, Fonseka’s campaign strategists confide that they were encouraged by the General’s handling of the impromptu question. That reflects well on the General, they say.
But, if that is intended for political mileage, the General is unlikely to be the only recipient. His former commander in chief, President Percy Mahinda Rajapaksa now wants to expedite a war crime investigation, which he had ordered after the tabling of a US State Department report to Congress, which alleged possible war crimes in the final few months of Sri Lanka’s conflict.
President Rajapaksa has said that he wanted the report by the end of this month.
The President earlier appointed a panel of President’s Counsel, whose names have not been made public to probe the war crime charges. Since then, nothing had been heard of the panel until last week’s Presidential announcement.
It would be rather cynical to associate the timing of the latest deadline for the submission of the much delayed report with the presidential election. But, that may not be far from the reality, given the propensity of the successive administrations to manipulate commissions of inquiry in their favour and to tarnish the image of its political opponents.
Scapegoat
This time around, government has a scapegoat by the name of Sarath Fonseka, who by the virtue of being the commander of the army could be blamed for any possible breach of conventions and laws of war.
A previous commission of inquiry appointed by this administration with much hoopla – and with the participation of international experts — fell short of the minimum international standards. Foreign experts pulled out from the panel and the inquiry ended up being a farce.
UN Human Rights Commissioner, the former South African judge Navi Pillay has repeatedly called for an independent war crimes investigation. EU nations and human rights groups, such as Amnesty International and Human Rights Watch have joined the campaign.
But, Sri Lankan government fought tooth and nail and achieved a propaganda coup when it preempted a EU backed resolution calling a war crimes probe at the UN Human Rights Council with a third word resolution applauding Sri Lanka for the decimation of the Tamil Tigers.
The Rajapaksa administration has largely been impervious to international calls, until recently when two incidents rattled its composure: a US State Department Report and leaked video footage of summary execution of alleged Tiger captives.
Two commissions were appointed; a panel – whose impartiality was challenged by Philip Alston, Special Rapporteur on Extra-Judicial, Summary or Arbitrary Executions-concluded that the video footage was fabricated. The other commission report is pending.
Can war be a crime?
It is famously said that all is fair in love and war. But not any longer, at least in war. War crimes have largely been an alien concept till the Second World War— though several German military officials were tried for crimes committed in the World War 1. There was also the philosophical foundation of the Just War Theory which provided a set of rules in the conduct of war; however adherence to such rules had been nonbinding for most of the time.
However, the Second World War turned the tables. The Holocaust by Nazis and mass killings of Japanese imperial army in South East Asia compelled the world leaders to charge the perpetrators of war crimes and crimes against humanity, leading to Nuremberg Trials of former Nazi German officials and Japanese trials of the Imperial Japanese military and political officials. The recent war crime tribunals of Rwanda Genocide, Liberia and former Yugoslavia are built on this tradition and underscore the quest to bring to justice the perpetrators of some of the worst atrocities in the modern history.
Article 147 of the Fourth Geneva Convention defines war crimes as: “Willful killing, torture or inhuman treatment, including… willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile power, or willfully depriving a protected person of the rights of fair and regular trial, …taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”
However, the recent history would also reveal that only the vanquished had been tried whereas the victor would rarely be subjected to scrutiny though the Just War Theory envisages that the members of both the victor and the vanquished should be tried for their involvement in war crimes. For instance, after the Second World War, only the axis members were tried in Nuremberg, though the allied attacks such as fire bombing of German town of Dresden and dozens of Japanese cities caused mass civilian casualties.
It is said that when the senior most Nazi politician to be arrested by the allies, Hermann Goering was given indictment papers, he scribed on the margins that ‘the victor will always be the judge and the vanquished the accused.’
Churchill famously said had the allied forces lost the war, he and the other allied leaders would be in the dock. There had been concerns of victor’s justice, even at the Nuremberg trials. Such concerns are understood. History is always written by the victor.
Therefore, there is historical precedence to the aversion of the Sri Lankan authorities to a war crimes probe. There is no time in the recent memory in which the victor was tried for war crimes.
Call for probe
Equally important in the Sri Lankan context is that, it is not simply the quest for justice that underpins the calls for a war crimes investigation. There are maneuverings by the Eelam lobby and most notably the project, Tamils Against Genocide, which had handsomely spent to buy the support of US government officials and academics. Of them, two most vocal proponents are Bruce Fein, former Associate Deputy Attorney General of the United States and Francis Boyle, Professor at Illinois University’s Law School. For the operatives and apologists of the LTTE, this is another rallying call to revive the separatist project and defame Sri Lanka. In fact, the separatist agenda has eclipsed all other concerns in the calls for a war crime investigation — this is fair enough reason for the government to shoot down any such calls with scorn, which it does ever so often.
However, there is a missing point in both these opposing discourses. That is as to how a war crimes probe could help the reconciliation process. An open disclosure of what happened in the final phase of the brutal conflict could help heal the nation and foster ethnic reconciliation. A disclosure of events and suffering of a people trapped in the conflict would help the divided communities to empathise with each other. That is a stronger case to go ahead with a war crime investigation.
“There was no ‘international call’ for a war crimes probe”
We asked Dr Dayan Jayatilleka, the former Ambassador and Permanent Representative of Sri Lanka to the United Nations in Geneva, who fought tooth and nail against international calls for a war crime investigation about his views on such a probe.
Jayatillake was instrumental in preempting a EU backed resolution at the United Nations Human Rights Council with a third world resolution which praised our government for the military victory against the LTTE.
What is your take on Fonseka’s remarks (on the war crime investigation?)
He is entitled to his views.
If former army chief, the architect of the military victory says he is not against a war crimes probe, what did compel you and the foreign ministry to campaign against international calls for a war crimes investigation?
I firmly believe that any investigation should be done by Sri Lankan institutions, be they existing ones or new ones, such as the courts, a parliamentary Select Committee, a recomposed and reinvigorated National Human Rights Commission, a newly appointed Human Rights Ombudsman or a Special investigator (Justice Weeramantry comes to mind). There should be no infringement of sovereignty by means of any international investigation which can easily turn into a politicised witch-hunt because there are those who wish to punish Sri Lanka for its victory against the Tigers and the eradication of Prabhakaran. Contrary to your question, there was no “international call” for a war crimes investigation. If there was, we couldn’t have won by almost a 2/3rds majority in Geneva! The call was from a handful of Western states, mainly of the EU, driven by the Tamil voters in the Diaspora and the human rights NGOs. This was rejected by an overwhelming majority of the international community including those who represent the vast majority of the world’s peoples.
General Fonseka as Army commander was the motor force and one of the architects of the military victory, not “the” architect as you put it which implies that he was the sole architect of the victory. The architecture of the victory was a collective achievement of at least five men – the Commander in Chief, the Secretary Defense, and the Commaders of the three services. General Fonseka was the main driving force of the Army’s performance but each of the three services had their own driving force while the whole effort was coordinated and driven by the Secy. Defence reporting to and under the Commander in Chief, President Rajapaksa.
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