The most diabolical and fiendishly clever policy position that the common opposition has taken is that they will not allow our war heroes to be tried by any international war crimes tribunal, but that any allegations of war crimes will be looked into by a domestic tribunal. The common opposition candidate himself has come before the people and pledged publicly that no international war crimes tribunal will be allowed to try any war hero. However he has given a statement which was carried in The Hindu and the Indian Express to the effect that a domestic mechanism would be set up to look into allegations of war crimes. This was later confirmed by Champika Ranawaka. The people of this country have got used to the idea that what is bad is an international inquiry into war crimes. By the mere addition of the word ‘domestic’ most people would be lulled into a sense of false security on the assumption that since such an inquiry will be conducted by ‘our people’ the war heroes will not face any problems.
The first thing that we have to realize is that this pledge to hold a domestic inquiry into war crimes has not been adopted by the common opposition to please anyone in Sri Lanka. Nobody in Sri Lanka is really asking for a domestic war crimes inquiry. The TNA did ask for an international inquiry into war crimes but they never asked for a domestic process. In fact it is highly unlikely that the TNA will have any faith in a local process. The hope of the TNA would be that an international process will pave the way for bigger things such as a referendum in the north and east for the creation of a separate state. A domestic inquiry will not necessarily lead to such an outcome and as far as the political objective of the TNA is concerned, will be largely unproductive except in terms of wreaking revenge. If given a choice between the implementation of police powers and having a domestic war crimes inquiry, the TNA would undoubtedly opt for the former rather than the latter because police powers takes them some distance towards their objective.
The Western powers on the other hand have a different agenda in mind. For the West, the need for regime change in Sri Lanka is predicated not so much on the need to administer justice or to express solidarity with the Tamil cause but for geo-strategic interests where the patriotic camp on Sri Lanka has to be comprehensively defeated and a more pliable government installed in Colombo. The way to do that is to put the leaders of the patriotic camp out of circulation for good. If the present crop of leaders of the patriotic camp is removed from the scene they know that it will take years if not decades for Sri Lanka to produce another crop of leaders who can fire the imagination of the public in quite this manner.
The best way to take the Rajapaksas and the war heroes out of the equation would be to have an international war crimes tribunal. But there is no mechanism that can be used to institute an international war crimes inquiry against Sri Lanka. There are only three ways in which a war crimes inquiry against Sri Lanka (or any other country for that matter) can be launched. The first is by the UN Security Council ordering the setting up of such a court. When the Security Council makes such an order the entire UN membership has to fall in line and even provide funding for the upkeep of that war crimes tribunal. The International Criminal Courts for the former Yugoslavia and for Rwanda were created in that manner.
The second method is to utilize the mechanism of the International Criminal Court (ICC). There are three ways in which the ICC can initiate an inquiry into war crimes in a given country. The first is by the UN Security Council requesting the ICC to have such an inquiry against a given country. When the UN Security Council makes such an order, the ICC can proceed even if the country concerned is not a member of the ICC. The second method by which the ICC can initiate an inquiry against a country is if a member state brings to the notice of the ICC Prosecutor that a situation in a particular country needs to be looked into. But for this method to be used, the country concerned has to be a member of the ICC and within its jurisdiction. Sri Lanka however, is not a member of the ICC. The third method in which the ICC can start a proceeding against a country is if the Prosecutor feels that an issue that has arisen in a country warrants inquiry. But for this too, the country concerned has to be a member of the ICC and within its jurisdiction. Since SL is not a member of the ICC, the Prosecutor cannot take any action.
The West at a dead end
So whichever way we look at it, the West has no way of instituting an international war crimes tribunal against Sri Lanka. The UN Human Rights Council can hold as many inquiries and publish as many reports they like but they do not have the authority to set up a war crimes court with jurisdiction over Sri Lanka. Some may think that the Western powers will use the authority of the UN General Assembly (UNGA) to set up a war crimes tribunal against Sri Lanka. The UNGA is supposedly the highest decision making body in the UN, but in actual fact is subordinate to the UN Security Council which is the real decision making body so much so that the UNGA is expressly forbidden from taking up any matter that is being discussed at that moment in the Security Council! There is also the fact that the UNGA has never set up a criminal court with regard to any country – that is the exclusive preserve of the UN Security Council.
Furthermore, trying to collect votes in the UNGA will be much more difficult than in the 47 member Human Rights Council. Even in the UNHRC the Western powers have not done well. With the entire power of the USA and the EU mobilized against Sri Lanka, the Western powers managed to get only 23 votes as against 24 that opposed their resolution on Sri Lanka in 2014. So taking the battle to the UNGA will not be easy even for the Western powers. The general assembly does have the power to ‘Discuss any question relating to international peace and security and make recommendations on it.’ However this power does not extend to setting up war crimes tribunals since they can make only ‘recommendations.’
Nobody really takes notice even if the UNGA makes recommendations against a country. In 1952, when Dudley Senanayke entered into the Rubber-Rice Pact with China, the USA had moved the UNGA to impose sanctions against the newly formed Communist government of the People’s Republic of China. The USA could not get sanctions passed against China in the Security Council because of the veto power of Russia. So they settled for second best and got the sanctions passed by the UNGA. The USA which had just won the Second World War was at that time at the zenith of their power and influence so they could muster enough votes to see the sanctions passed. But nobody took any notice because the UNGA can make only recommendations and has no mechanism to see that its decisions are implemented. Even Dudley Senanayake did not think twice before flouting the UNGA sanctions against China. Rubber was one of the items on the prohibited list, but he signed an agreement to sell rubber to Communist China and the USA could do nothing but fume and cut off aid to Sri Lanka. It is unlikely that Dudley would have dared to flout the UN sanctions against China had they been imposed by the Security Council.
So whichever way we look at it, the Western powers don’t have any method of instituting an international war crimes tribunal against Sri Lanka. There is just one way to get to that objective – getting the government of the country concerned itself to set up a domestic war crimes inquiry. This is the way the special war crimes tribunals for Sierra Leone, Kampuchea and Lebanon were set up. The governments of those countries took the initiative to set up the tribunals and later sought advice and logistical support from the UN. The law applied by such courts will be a mix of international and local laws. It is inevitable that such courts will have to borrow a great deal from the body of jurisprudence built up by previous international criminal courts such as the ICTY (International Criminal Court for the former Yugoslavia) as most countries do not have any provisions relating to ‘war crimes’ in their domestic criminal legislation – certainly Sri Lanka does not.
Besides, as we pointed out earlier, nobody in Sri Lanka is asking for a domestic war crimes tribunal. The only reason for the common opposition to make such a pledge is to please the West. The West has no way to institute a war crimes tribunal against Sri Lanka except by getting the government of Sri Lanka itself to cooperate by starting a domestic process. What the people of this country has yet failed to realize is that when the common opposition says that they will not allow war heroes to be taken before any international war crimes tribunal, they are in fact pledging to disallow something that can never be done. Even more importantly, the people and the government itself has not realized that by pledging to institute a domestic inquiry into war crimes, the common opposition is opening the only door available to the West to get a war crimes process started in Sri Lanka. The pledge of a domestic war crimes tribunal IS the Western conspiracy in disguise!
One would think that with an election on, the common opposition would avoid saying anything that may arouse the suspicions of the public. The reason why they announced to the public that a domestic war crimes tribunal will be instituted is obviously at the behest of their Western friends. The West obviously wants to ensure that their investment produces results and they want to hold the beneficiaries of their patronage to account. It would also be useful to seek a mandate of sorts from the Sinhala public for this domestic war crimes tribunal so that nobody can say later that the common candidate did not make his intentions clear before the people voted.
Another reason why the common opposition has begun talking openly about a domestic war crimes inquiry is obviously to enthuse the northern and eastern Tamil voter to go to the polling booth. The biggest fear that the common opposition has is that the northern Tamil voter would remain apathetic and thereby reduce one of their best potential vote banks. They obviously think they can strike a balance between the Sinhalese and the Tamils by telling the former that they will not cooperate with any international war crimes inquiry and satisfying the latter by telling them that they will institute a domestic war crimes inquiry.