Kath Noble

And the cold war goes on

Posted in The Island by kathnoble on March 13, 2013

Why a war crimes investigation will have to wait

Student Fast in ChennaiPressure for a war crimes investigation continues to mount. With the sessions of the UN Human Rights Council entering their second week, activists descended on key national capitals, urging governments to pass a resolution that calls for international action.

As usual, India has been the site of the most extreme interventions. As Karunanidhi’s DMK held a meeting of the Tamil Eelam Supporters’ Organisation in Delhi and called for a general strike in Tamil Nadu, a member of Seeman’s NTK self-immolated and eight students of as yet unidentified affiliation launched a fast-unto-death in Chennai. Then a group of thugs ransacked an office of Mihin Lanka in Madurai, and Vaiko’s MDMK laid siege to the Sri Lankan Deputy High Commission, burning effigies of Mahinda Rajapaksa and shouting about genocide.

Meanwhile, Amnesty International gave Manmohan Singh a petition with 14 lakh signatures.

I argued in my last column that all of these efforts to raise the issue of war crimes are targeting the wrong people – it is not the Indian government that needs to be convinced of the need for an investigation but Sri Lankans.

Predictably, a lot of readers wrote to say that the international community has to step in because there is no chance of justice being done in Sri Lanka.

I should start by saying that I believe that war crimes took place. I believe that the LTTE committed them in abundance and I believe that the Army committed some too, and I believe that one set of wrongdoings cannot be weighed up against another, especially when those wrongdoings involve a third party – the ordinary people of Sri Lanka. Readers need not bother to ask for proof, since I have already said that these are only beliefs, albeit beliefs that have been formed on the basis of experience and common sense and information that is in the public domain.

But suppose somebody in the defence establishment decided that Prabhakaran’s 12-year old son shouldn’t be left alive in case he ever decided to front what they are so fond of calling the LTTE rump. Justice would require him to be punished.

Suppose the Army deliberately shelled civilians to force them to brave LTTE reprisals and break out of the No Fire Zone. Justice would require them to be punished too.

We may understand why such things are done and even sympathise with and feel gratitude towards the people who take on the responsibility to fight on behalf of others, especially when they have to face an opponent as ruthless as Prabhakaran, but they are not right. We should not pretend otherwise.

We must be able to distinguish between war crimes and the awful consequences of war. We must recognise that war crimes do not just happen – they are the result of conscious decisions by individuals.

In the end, this is how to protect those who need protecting.

What kind of punishment those who need punishing should receive is open to discussion, but this is contingent upon them being punished at all.

As of now, very few Sri Lankans are willing to discuss even much more straightforward incidents than these two scenarios.

This brings us back to the question of how justice could possibly be done in Sri Lanka.

In fact, I believe that it is highly unlikely. And in the immediate future, there is absolutely no chance whatsoever.

That is not the point. My question to all of the people who argue that the international community must step in is why they think that their strategy has any more chance of succeeding – how exactly is India or the United States or any other country going to deliver justice?

It is my contention that the international community is even less likely to get the job done.

I am quite sure that Mahinda Rajapaksa is far too wily a politician to have ordered any war crimes, but he is not about to give up anybody who did either.

And look at what the international community has achieved in other countries.

Charles Taylor of Liberia is the only leader to have been convicted of war crimes, but these were committed in Sierra Leone not in his own country. He fled to Nigeria in 2003 when it became obvious that he was losing the second of Liberia’s civil wars, and in 2006 the newly elected president called for his extradition. The Special Court for Sierra Leone sentenced him in 2012.

Meanwhile, Muammar Gaddafi was indicted by the International Criminal Court in 2011 as NATO prepared to bomb Libya in support of a group that was waging a civil war against him. He lost and was murdered before he could be brought to a court.

Slobodan Milosevic too lost a war. He was indicted by the International Criminal Tribunal for Yugoslavia in 1999 while NATO was bombing Serbia to force it to sacrifice Kosovo. They claimed that this would make Serbian troops behave better, although the exact opposite has since been discovered to have been the case. Having lost the war, he went on to lose an election, but even the man who beat him didn’t want to send him to The Hague. It was done against the wishes of the president by the cabinet in the face of threats to withhold aid, for which Serbia was heavily dependent on the West. Even then, Slobodan Milosevic died in 2006 before a verdict could be reached, and the following year the International Court of Justice concluded in a case brought by Bosnia that there was insufficient evidence to link him to war crimes, although he didn’t do enough to prevent them from happening.

Finally, there is Omar al Bashir of Sudan, who is the only incumbent to have been targeted. Hundreds of thousands of people are estimated to have died in Darfur in the violence that followed the negotiated end to Sudan’s second civil war, and a warrant for his arrest was issued by the International Criminal Court in 2009. However, this move was strongly criticised by the African Union, the Arab League and the Non-Aligned Movement, amongst others, and he remains in charge of his country to this day.

To sum up, the international community has not even been able to punish leaders who lost their wars, except in one case for war crimes that were committed in another country.

Mahinda Rajapaksa is simply beyond their reach.

Meanwhile, as I sat down to write this column, a neighbour of mine from Kenya pointed out that her country has just elected Uhuru Kenyatta and William Ruto as president and vice-president, both of whom have been charged by the International Criminal Court. They are accused of crimes against humanity in the aftermath of a disputed election in 2007, and even the BBC says that the indictments may actually have swung the vote in their favour.

In other words, even people who have done nothing very much in comparison with Mahinda Rajapaksa have benefited from being pursued by the international community.

And he must know it.

For these reasons, the very best that we could expect from this pressure for a war crimes investigation is that the Government decides to sacrifice a few junior officers, while heavily compensating their families. And this would really not constitute justice.

Meanwhile, the worst that we can already see happening is the ever greater polarisation of debate on the issue.

Those who dismissed the LLRC as a whitewash are now beginning to understand exactly what a whitewash looks like. It is not just a matter of the Government ignoring recommendations to investigate specific allegations, which has long been its standard operating procedure. The Army’s Court of Inqury has now also rolled back some of its conclusions, including most significantly the admission that there were ‘considerable civilian casualties’ in the final phase of the conflict, and not only at the hands of the LTTE. More extraordinarily still, various individuals are beginning to challenge well established and accepted narratives of the war, such as the burning of the Jaffna library and even the Black July riots.

Very soon we will be told that it was actually the LTTE who shot JFK.

In such circumstances, it is going to be a constant battle to prevent the cold war from getting hot again.

Of course the crazies in Tamil Nadu will not care about that. They don’t have to live in Sri Lanka, so they are free to take entirely abstract positions without cluttering their minds with anything so mundane as facts. Reality doesn’t matter to them.

I just hope that it matters to some people.

Whether the Government wins or loses the vote in Geneva is not very important. It certainly deserves censure, for all of the reasons that I have discussed in these columns over the last year. However, if this is done using the threat of a war crimes investigation, it will be to the detriment of the ordinary people of Sri Lanka – the third party in whose name all of this activism is being done.

This article was published in the Midweek Review on 13th March 2013. The internet version may be accessed here.

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