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Attempts to Prosecute Soldiers May Lead to Return of Mahinda Rajapaksa and all what he Represents.

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By Rathindra Kuruwita

The time has come once again for the United Nations Human Rights Council (UNHRC), comprising such defenders of human rights as Egypt and Saudi Arabia, to scrutinize, among other things, how reconciliation is going in Sri Lanka. Since the end of the hostilities in May 2009, we have been under pressure from the international community, i.e. several Western nations, who always seemed to have preferred if the LTTE had won, and both Mahinda Rajapaksa and Maithripala Sirisena Governments have been agreeing to various resolutions that everyone knew could never be implemented.

Resolution 30/1 that we agreed to in 2015 is probably, the worst resolution that we agreed to implement although Mahinda’s deal with Ban Ki-moon is a close second, and has ensured that the discussion on ‘Sri Lankan reconciliation and peace building process’ revolves around Hybrid Courts. At least Mahinda’s deal with Moon led to the establishment of the Lessons Learnt and Reconciliation Commission (LLRC) and its excellent report. On the other hand the discussion on Hybrid Courts has divided the country and even those who believe that an independent investigation on alleged war crimes is necessary if we are to move forward, and has ensured that we do not talk about anything else.

Drawing the line on sovereignty

I understand that the reconciliation process – is complex and the number of cases potentially covered by the four mechanisms/institutions that the government committed to establish through the resolution, an office on missing persons, an office for reparations, a judicial mechanism with a special counsel, and a truth, justice, reconciliation and non-recurrence commission – is immense, and because I understand this, I don’t mind technical assistance for international experts from neutral countries. But allowing into the Hybrid Courts ‘international judges, defence lawyers, prosecutors and investigators to investigate allegations of violations and abuses of international human rights law and violations of international humanitarian law,’ as recommended once again by Human Rights High Commissioner Zeid Ra’ad Al Hussein last week, I feel is too much foreign intervention and can be the beginning of a lot of things that will infringe our sovereignty. Also there is the fact that things will be a whole lot worse after the Hybrid Court has done its thing.

If we look at recent examples of courts, comprising ‘international judges, defence lawyers, prosecutors and investigators’, appointed by the ‘international community’ to investigate alleged war crimes, it is obvious that these institutions are never unbiased. The ‘international community,’ comprising a core group of several Western nations, INGOs and international media, almost always takes sides in any conflict and are quick to decide on who the good guy and the bad guy is, although in any sectarian conflict there are no good guys. Early in the conflict the ‘international community’ designated the Sinhalese as the bad guy and when the ‘international community’ gets to establish these tribunals often these ‘bad guys’ get taken to the cleaners.

Indictments without investigations

For example, the overwhelming majority of the International Criminal Tribunal for the former Yugoslavia, are aimed at Serbs (68% of the indicted) although the other warring parties, especially the Croats, had carried out hideous crimes. Don’t get me wrong, the Serbs did most of the atrocities in the Yugoslav wars but the fact that only Slobodan Milošević (President of Serbia) and Perišić (Chief of the General Staff of the Yugoslav Army) has been indicted from the Serbian military or political upper echelons when it comes to wars in Croatia and Bosnia shows that the indictment process is biased. And usually those communities who feel that these tribunals have been unjust to them become more resentful. Imagine how things would have turned out that if Croats and Bosnians still had to live under Serb rule, factoring in the bitterness of the Serbs, imagine the sectarian mess. Imagine how Sinhalese will react when most of the indicted turn out to be soldiers from the Army and when Muslims figure out nothing concrete will happen regarding the ethnic cleansing they were subjected to.

Already we have seen a number of security force personnel charged with various crimes only to see them either being acquitted or to see trials being dragged on forever. Of course you can’t deny that the defence establishment and individual Army officers are doing their best to protect their comrades. And this is quite natural; people tend to be protective of the people they work with, often for selfish reasons. Think of your own office, if you are targeted by an outsider, will not your colleagues come to your aid? If your answer is no, well then either you are an awful human being that no one likes or you work with awful people. But then again an allegation that can’t be proved might also be a sign that the investigative agencies started serving indictments before a comprehensive investigation has taken place. Once again this is a trademark of investigations done by countries that are under pressure from the ‘international community’ to provide evidence of progress.

The way forward

I am not suggesting that I have a better solution than Resolution 30/1. I have been increasingly pessimistic of the ability of different ethnic/religious communities to work together because evolutionary biology/psychology and a number of meta-studies have shown that, well, that we really don’t like people who are different to us.

Perhaps the best we can do is to put in place structures to prevent people from hurting each other. But I think a good starting point to create a mechanism that will achieve reconciliation, well at least a repeat of similar disasters, is to acknowledge that there were no good guys in the Sri Lankan conflict and all tribes here are sectarian. We should also understand that in a sectarian context anything can be interpreted as an attack on a group of people. This makes reconciliation, especially a ‘reconciliation’ based on punishing, a dangerous and a complex proposition.

I think a lot of Sri Lanka Freedom Party (SLFP) politicians, including the President, understand that Resolution 30/1 and attempts of prosecuting soldiers will be messy. But the United National Party (UNP) and its affiliates do not seem to understand this. And this ignorance might easily lead to the return of Mahinda Rajapaksa and what he represents

COURTESY:Ceylon Today

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