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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A wish for the New Year

Posted in The Island by kathnoble on January 9, 2013

Why Sri Lanka must join the 90-strong league of nations that recognise the right to information

right to informationRajiva Wijesinha has been attracting attention in recent weeks due to his unfortunately rather lonely stand from within government ranks against the impeachment of the Chief Justice. It would have been easy to keep quiet, so he deserves a round of applause.

But it is the effort that he has been making to engage with people in the North and East to find out what they need or want to rebuild their lives that is even more important. Unlike other government politicians, who meet this constituency only when they are laying a foundation stone for an infrastructure project that they are hoping to take credit for – or get a cut of – without the slightest concern as to whether it is actually a priority, Rajiva has been listening to them and communicating what he has been told to the rest of us through his column in the Daily News. Of course what people feel confident to share and what that newspaper cares to publish can be nowhere near the whole story, but even a very partial account is valuable in understanding the ground situation in the former conflict areas.

One conclusion that he has come to as a result of this experience is that to get things done there is a desperate need for transparency in government operations. In one of his recent articles, he has urged action on a Right to Information Act, which he points out was one of the recommendations of the LLRC.

We’ll soon find out whether being included in the much referred to LLRC Action Plan means anything!

A Right to Information Act is long overdue.

The LLRC Report notes that such laws have been adopted by virtually every other country in the region, including India, Pakistan, Bangladesh, Nepal and the Maldives.

Senior politicians in those countries have realised that it is only way to ensure that their policies are implemented. Bureaucracies throughout South Asia – and indeed worldwide – suffer from inertia and corruption, and they are subject to many other influences and pressures than those coming from the top. Interference by juniors is also an issue, and it can be difficult to embark on an initiative to discipline them when their indiscipline has become part of the political culture. As a result, people get disenchanted, either with their party or with the system as a whole. Of course a Right to Information Act makes it easier for citizens to expose the wrongdoings of ministers and presidents as well, but it is now generally recognised that the benefits outweigh the costs, even for them.

From the point of view of citizens, this is wonderful news, since the legislation can be an extremely powerful tool in challenging budding dictators, never mind democrats.

The need in Sri Lanka is clear.

There is no longer any such thing as ‘information’ in this country. There is only hearsay.

Consider the rather innocuous matter of expenditure on Deyata Kirula. Last week, the UNP blamed the Government for spending Rs. 26.5 billion on what they dubbed a carnival when so many people have been affected by flooding. The money should be used for their rehabilitation, a spokesman argued, since it is clearly not possible to build a house within the allocated sum of Rs. 100,000. So far, so easy to follow. But then the Government claimed that the exhibition would cost only Rs. 40 million, with the remainder of the allocation of Rs. 60 billion being for development work in the four districts of Ampara, Batticaloa, Trincomalee and Polonnaruwa. And the JVP added that of the Rs. 25.5 billion spent on Deyata Kirula last year, in Anuradhapura, only a single building remained, supposedly a paddy store, but it was located so far away from paddy areas that it could not be used.

And we are lost!

As things stand, there is absolutely no reason to trust the Government and absolutely no reason to believe the Opposition.

Whoever happens to be near a microphone says whatever comes into their head, never mind whether it is true or even whether it corresponds with what they said yesterday. And tomorrow they will have no qualms in telling us the exact opposite.

Most people respond by closing their minds, no longer willing to try to separate fact from fiction.

A Right to Information Act can help to get out of this dangerous rut.

Properly formulated, it would do a great deal towards restoring the category of ‘information’, by forcing the Government to give truthful answers to questions put to it by citizens or face the consequences in court.

At the risk of sounding like a spokeswoman for the Indian High Commission, having suggested in my last column of 2012 that its National Rural Employment Guarantee Act could be a model for Sri Lanka, I shall dare to suggest in my first column of 2013 that its Right to Information Act is also worthy of emulation. (Since I can already picture a small army of over-sensitive nationalists hyperventilating at their keyboards, I would like to offer as some kind of compensation my sincere belief that India has even more need of these progressive laws than Sri Lanka!)

A key feature of the legislation is the penalties that it imposes on officials for failing to respond within given deadlines, for giving incorrect or incomplete replies and for destroying evidence, including fines to be paid by them personally.

That this is effective may be seen in the growing number of activists who are being harassed or attacked.

Researchers who have compared the laws of the 93 countries that have adopted a Right to Information Act to date consider India’s to be the second best. By comparison, the UK is ranked 25 and the US 39. (See http://rti-ranking.org/)

This is not a matter of the enlightenment of its leaders, although it is surely not a coincidence that both the Right to Information Act and the National Rural Employment Guarantee Act were passed in 2005, just after the return to office of Congress with the support of the Left Front. Rather, India does well in the global ranking because its Right to Information Act was the result of a sustained and well-supported campaign by civil society, and civil society is strong enough to prevent Manmohan Singh from succeeding in his now regular attempts to water it down.

Sri Lanka must take note.

I recall writing in support of a Right to Information Act in 2010, when it was reported that the Ministry of Justice was preparing a draft. But nothing emerged, with no constituency pushing for it.

Now the LLRC Action Plan says that it is the responsibility of the Media Ministry.

Even if the Government finally makes up its mind to pass the legislation, without proper scrutiny, Sri Lanka is bound to end up with the world’s worst example.

For a long time, the category of ‘civil society’ in Sri Lanka was practically non-existent, since all space was occupied by NGOs and they were totally discredited by the positions they took during the war, among other things. There was little hope of them bringing pressure to bear on the Government. Indeed, although people in other countries were ever ready to listen to them, they didn’t seem to have much idea of how to use the vast sums of money they were getting to influence Sri Lankans.

The Government would have us believe that nothing has changed. All dissent – even very mild disagreement – is said to be connected to NGOs and foreign plots, usually terrorist-inspired.

But the more extraordinary its actions, the more obvious it is that this is not the case. With the impeachment of the Chief Justice, another segment of ‘civil society’ has risen up in protest – lawyers. Like academics before them, whose three month long trade union action was the most effective challenge to the Government since the end of the war, in the sense of starting a debate on an issue of genuine importance, they are part of the mainstream. It isn’t easy to dismiss them. When they come out onto the streets, unlike free trade zone workers and fishermen, they are not subject to live firing by the Police. At least, not yet. And their real strength lies in convincing people, not in waving banners. They enjoy considerable respect among the rest of the population, and they have the capacity to lead them, if they so wish.

Let’s hope that they also take up the cause of a Right to Information Act, since it is clear that Rajiva Wijesinha alone cannot make it happen.

This article was published in the Midweek Review on 9th January 2013. The internet version may be accessed here.

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