by
Wijeyadasa Rajapakshe-PC& M.P.
“War crimes and crimes against humanity” is a current topic which is being discussed today as never before in history. One might wonder whether there was a war without crimes. War means nothing else than a heap of crimes. The world renowned historian who was the Head of the History Faculty in London University, Sir Arnold Toynbee says that since human civilisation began the longest period that prevailed without a war in any part of the world was 14 years. That is an adequate proof to understand that man is greedy and in quest for power and wealth than for anything else. Aristotle in his wisdom has said that “every fool in this world thinks that he is born to rule others”.
One of the main objectives of the human endeavour to establish the democratic governance was to rescue the people from the grip of crazy rulers. It is a common denominator among all communities as well as individuals that no one is willing to be subjected to a rule of another. That is why the “rule of law” is substituted in place of “rule of man”. In the absence of rule of law, the rule of “Survival of the Fittest” takes its place predominantly.
In simple term it is called the “law of the jungle”. In the jungle, animals who can flex their muscles the most, like lions and tigers who dominate over the others. When such an attitude is ingrained in human mind, it leads to emergence of conflict. The basis of conflict may vary from one another such as the difference of race, language, religion, etc. But it is the nuclear that was conceived in human mind which could eventually wipe out all living creatures. Although every war is catastrophic and devastative, people who are engaged in the endeavour of maintenance of peace have drawn up a line not to tolerate certain crimes even in midst of a war or in a battle field. For example, shelling of hospitals, killing of surrendered enemies, intentional killing of civilians and unarmed people could be cited.
After taking into consideration the killing of 8.5 million people in the World War I, and 48 million people in the World War II, there had been several war crime tribunals. Among them Nuremberg trial is a landmark one in the history of bringing war crimes to justice. Now the international standards have been to determine as to what crimes fall within the scope of war crimes. The main objective of the United Nations was to avert any future conflicts among nations and to prevent crimes against humanity. However much various treaties and conventions adopted to safeguard human values and also to guarantee each Member State equal rights, as far as their sovereignty is concerned, they are only decorations to give a colourful and fascinating picture about UN to the world.
All those measures should be appreciated as they have helped to a great extent to avert conflicts and wars. But the undeniable truth is that still the rule of the “Survival of the Fittest” prevail in the world. For example, with the support of European countries, America invaded Iraq and it was subjected to a holocaust. It was commenced under the guise that, Iraq had “weapons of mass destruction” hidden in the country. But after all the destruction nothing of that sort was discovered. Similarly they attacked Afghanistan on the basis that Al-Qaida leader Osama Bin Laden was hiding in Afghanistan. But he was killed in Pakistan. Similar catastrophic situations prevail in Gaza due to the conflict between Israel and Palestine.
Prior to that socialist power block which stood up to the American-European capitalist power bloc was tactically destroyed and finally the bloc led by the Soviet Socialist Republic Union and the Union of Yugoslavia were scattered into pieces. Who is responsible? Where is the accountability? Similarly if we have an overview on our internal affairs the same theory continues. Any person who is a potential threat not only to the leaders in the centre but also to the leaders in rural communities has no sustenance in this society.
Commencing from persons in ministerial level to members of Pradeshiya Sabha are involved in all kinds of crimes which include murders, highway robberies, taking ransom, rape, etc. Even the judiciary and the police who are responsible for maintenance of law and order have become victims of the circumstances due to politicisation or political influence. Can anybody deny that both in the world and in this country that the rule of the survival of the fittest is operative?
Sri Lanka fought one of the horrendous terrorists wars from 1983 to 2009. As usual during the last phase of the war, some countries exerted tremendous pressure to scuttle the whole process, while some countries helped. While the war was in full swing we observed a lot of unwholesome conduct from some of the vociferous members of the government. Although all the four former Presidents fought the war nobody levelled any charge of war crimes prior to 2008. Special gratitude must be placed on record about the invaluable service rendered by former foreign minister Lakshman Kadirgamar who handled foreign affairs in an inimitable manner. But after that there was a series of unbecoming conduct on the part of some government members to provoke all powerful nations such as USA, European Union etc. They did not even spare India.
When United Nations’ under secretaries John Holms, Wijay Nambiar, Navaneethen Pillay came to Sri Lanka as representatives of United Nations all were branded as “Tigers”. One minister went on a deceptive hunger strike in front of United Nations office. Posters were pasted all over the country depicting U.S. Secretary of State Hillary Clinton, United Kingdom Prime Minister Tony Blair and John Holms as Tigers. Government officials asked them to mind their own business. As a result those powerful countries were waiting to fix Sri Lanka and to take us before the International Criminal Court of Justice on charges of war crimes and crimes against humanity, within the legal framework now existing.
The obstacle they had was that Ranil Wickramasinghe being the Prime Minister in 2003 did not sign the Rome Convention and therefore Sri Lanka is not a member country of the Rome Convention. But it provides that if a country consents for an investigation on such crimes, the International Criminal Court of Justice (ICCJ) is conferred with the power to do so as a member country that had consented to its jurisdiction.
Within 48 hours after the war was concluded, Ban Ki moon, the Secretary of United Nations came to Sri Lanka and got a commitment from the Sri Lankan government for an investigation of war crimes and crimes against humanity. Accordingly Rohitha Bogollagama, then Foreign Minister on behalf of the Sri Lankan government signed a Memorandum of Understanding termed Joint Statement on 23 May 2009 in Colombo. The last paragraph of it reads thus;
“Sri Lanka reiterated its strongest commitment to the promotion and protection of human rights in keeping with international human rights standards and Sri Lanka’s international obligations. The Secretary General underlined the importance of an accountability process for addressing violations of international humanitarian and human rights law. The Government will take measures to address those grievances.”
When one looks at the terms of reference given by the Secretary General of United Nations to the Panel of Experts chaired by Marzuki Darusman, it is apparent that the Secretary General has acted upon the mandate he got from the President of Sri Lanka through the joint statement signed on 23 May 2009. It states that;
“In the joint statement of the Secretary General and President of Sri Lanka issued at the conclusion of the Secretary General’s visit in the country on 23 May 2009, the Secretary General underlying the importance of an accountability process to address allegation of violation of international humanitarian and human rights law committed during military operation, between the government of Sri Lanka and LTTE. The President of Sri Lanka undertook to take measures to address these grievances at this time against this background;
“The Secretary General has decided to establish a panel of expert to advise him on the implementation of the said commitment with respect to final stages of the war.”
That position is further strengthened as the report of the panel of experts begins as follows;
“On the 22nd June, 2010 the Secretary General announced the appointment of the panel of experts to advise him on the implementation of the joint commitment included on the statement issued by the President of Sri Lanka and the Secretary General at the conclusion of the Secretary General’s visit to Sri Lanka on 23 March 2009”
The joint statements had been converted to joint commitment when it comes to the report.
Since the appointment of the expert panel, the permanent representative to the United Nations Palitha T. B. Kohona has sent several communiqués to Secretary General of United Nations and Marzuki Darusman accepting the legality and validity of the said panel.
The last letter before the release of the said Darusman Report had been written by Prof. G.L. Peiris, Minister of External Affairs to the Secretary General of United Nations on 15 February 2011 and it begins as follows;
“His Excellency President Mahinda Rajapaksa has directed me to convey his warm greetings and very good wishes for the success of all your endeavours.”
When he refers to the successful endeavours to the Secretary General, it means only the making of the said report through a panel of experts which enables him to initiate investigation on the alleged war crimes and crimes against humanity in the final phase of the war concluded in May 2009.
In the light of the conduct on the part of former Foreign Minister Rohitha Bogollagama, Permanent Representative to the United Nations, Palitha Kohona and present Foreign Minister Prof. G.L. Peiris on behalf of the President and the State of Sri Lanka, has paved the way for the United Nations and/or interested international communities to initiate investigation on war crimes although Sri Lanka is not a member country to the Rome Convention. There is no ambiguity that the jurisdiction of the International Criminal Court of Justice has been now conferred on it as Sri Lanka has already consented for such a process.
U.N Secretary General has anticipated that Sri Lanka might raise an objection regarding the validity of the expert panel of Darusman at a later time. Therefore he has forestalled it by appointing Palitha Kohana, Sri Lankan Permanent Representative United Nation to a similar panel which undertook the investigation on the human rights violation and war crimes in Israel-Palestinian conflict in Gaza. Hence the legal principle of estoppels may operate against Sri Lanka and will be debarred from challenging the validity of the Darusman Report in the sphere of international law.
Although government members raised their big voice saying that Secretary General of United Nations or the International Criminal Court of Justice has no authority to investigating into war crimes, they have already committed for it exposing not only themselves but also the entire nation to an imminent danger.
During the recent past, there has been several war crime trials held against political leaders. Such countries are Republic of Congo, Uganda, Sudan, Kenya, Central African Republic, Libya, Tunisia, Egypt, Republic of Cote D’ Ivore to mention a few. It is apparent that all those countries are in the African Continent.
In addition to that they prosecuted Milosevic, the President of the former Yugoslavia which is a Balkan country. The latest case was the war crimes trial conducted against the former President of Liberia Mark Taylor. He became the President of Liberia 1997 and remained in power till 2002 and he was charged on 17 counts of war crimes before the International Criminal Court of Justice. Basically the charge was that he encouraged rebels in Sierra Leon to mutilate, rape and murder victims in its Civil War. The war tribunal of Hague began the trial in 2006 and finally ended up in 2012 convicting him for 11 charges and sentenced for 50 years.
This government has lost sight of the importance of diplomacy during the war and aftermath as well. They thought that they can handle international affairs by adopting similar primitive and comedian modes which they follow in settling local affairs. Despite the fact that our foreign service had been the best in Asia sometimes back, they make almost all important appointments to diplomatic cadre on the basis of nepotism and loyalty alone thereby discarding the entire fabric of foreign relations.
The Foreign Service is full of members who are holding citizenship and/or permanent residential visas in other countries including the permanent representative to the United Nations, and diplomats in USA, UK, Brazil, Italy etc. These kinds of appointments have never been made by any country in any part of the world. The reason is when there is a conflict in between Sri Lanka and a country in which they hold citizenship; they are bound to take decision in favour of the country of their citizenship whether they like it or not. If the government cannot understand this simple logic, can one except this government to resolve favourably international issues which might adversely affect Sri Lanka?
The Sri Lankan government thought that it is appropriate for them to host the Commonwealth Heads of Governments Meeting in Sri Lanka in 2013 with the hope that they would be able either to avert or protract any possible investigation on war crime with the support of commonwealth member countries. That became a flop as the queen; the Figure Head of Commonwealth and Heads of Canada and India, did not take part in the conference. Few months before the conference David Cameron cautioned Sri Lanka by making a statement in United Kingdom Parliament that the purpose of his visit will be to insist upon an international investigation on war crimes. One week after he returned to UK, again he said in their Parliament that he was able to insist upon the need to hold an international investigation as a result of his attending the summit. Accordingly he was successful in getting confirmed an international investigation on war crimes against Sri Lanka by attending the summit.
Therefore it is quite obvious that after spending an enormous amount of public funds for the hosting of the summit, it became like feeding of cows on credit as it has left only a heap of cow dung in Sri Lanka while Cameron took away the milk, butter and cheese.
COURTESY:THE ISLAND