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Time for raised-sarong diplomacy



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One of the things that the UNHRC vote on Sri Lanka showed the whole world was that there still is a central government in India and that the Delhi government is not merely an extension of the Tamil Nadu government as some of us had come to believe. The stunned silence in Chennai from the usually arrogant and demanding DMK and AIADMK leaders in the immediate aftermath of the abstention can be interpreted as being due to the realisation that Delhi had begun to reassert itself in the most unmistakable way possible – by openly defying Tamil Nadu on the eve of a crucial general election. Just days ago, nobody would have thought this possible. The worm has turned, and how!  The Congress Party government has sent a message to Tamil Nadu that there is a limit to what they will tolerate. The recent attempt by the Tamil Nadu political establishment to release the terrorists convicted for killing Rajiv Gandhi appears to have been a wake-up call. The Tamil Nadu government did not bother to even consult the central government before announcing that they were thinking of releasing those jailed for killing Rajiv Gandhi. This was while Rajiv’s bereaved family was still at the helm in the ruling party of India and it displayed an arrogant insensitivity on the part of Tamil Nadu.


If the Congress party took that insult lying down, they would have lost many more votes in the rest of India than any they would gain in Tamil Nadu by being acquiescent. Even in the best of circumstances, Congress would win only about seven or eight seats in Tamil Nadu at the Lok Sabha elections. But if they appeared like wimps to the rest of the Indian population, they would have lost a much greater number of seats in other parts of India. The race now is to see which party will be able to cross the 200 seat mark in order to stand a chance of forming the next government; so they seem to be concentrating on the seats that they can get without worrying about what they can’t. If they manage to muster the magic number of 200 seats, there will be allies willing to help them form a government.


But the most important outcome for India of this abstention is not just putting Tamil Nadu in its place (though that too was of paramount importance) but the realignment of India’s bi-lateral relationship with the USA. If ever there was in recent world history, a bilateral relationship that needed redefining, it was the India-US strategic partnership. It would be correct to say that the Indian political elite had much greater self-respect as a subject people during the era of the British Raj, than they had as ‘strategic partners’ of the USA. If we Sri Lankans think that we have been having problems with the USA, our problems pale into insignificance when contrasted with the spats that India has been having with Uncle Sam. India is home to a fifth of the world’s population, it’s a nuclear power, and a regional power with an image to safeguard on the world stage.  The Americans were aiming deliberate sledgehammer blows at this very image.


Narendra Modi being banned from entering the USA on the grounds that he is a human rights violator, the body searches carried out on Abdul Kalam, India’s former President at US airports by American Airlines security personnel who knew he was India’s former head of state, a similar body search of the Indian Ambassador to the USA Meera Shankar at an airport in Mississipi even after she revealed her identity and claimed diplomatic immunity, the 2012 attempt by an American court to serve summons on Sonia Gandhi to answer allegations of human rights violations, the bi-partisan resolution presented On 19 November 2014 to the US Congress which roundly criticized Narendra Modi and the BJP and asked the Indian public not to vote for the them at the forthcoming general elections, the Devyani Khobragade affair which followed fast upon that, Sonia Gandhi being asked by the American court mentioned earlier to file answers to the charges that had been made against her, and most recently, Sonia being asked to submit a copy of her passport to the American court that has been hounding her by the 7th of April, were all landmarks in the master-slave relationship between India and the USA.


Indians have always been much more patriotic and conscious of their national self-respect than us Sri Lankans. As to how the average Indian could tolerate these insults to their leaders by a foreign power, is beyond comprehension. As we pointed out last week the problems that Sonia Gandhi and Devyanai Khobragade have been having are not due to the independence of the American judiciary as there are ample mechanisms for the US government to see that both cases were dismissed. When it came to the vote on Sri Lanka, the Indians kept everything secret until the last moment when they sprung this surprise on the world. This may have been partly due to the concern that if they reveal their hand early, there would be riots in Tamil Nadu. But the main reason for keeping things under wraps until the last moment was probably to give the Americans a rude shock and show them that if they need India’s help to achieve their foreign policy objectives, then they should treat India’s leaders with some respect.


 Given all the public insults that India has suffered at the hands of the USA in recent times, if the Indian Representative in the UNHRC was to vote with the Americans he would have had to remove his trousers first, place them on the table and then vote with the Americans. Besides, given the fact that both Narendra Modi and Sonia Gandhi have already been named as human rights violators by the USA who knows which direction the precedent being set with regard to SL would have led? It may even have resulted in the UN Human Rights Commissioner’s Office being mandated at some time in the future, to conduct inquiries against Modi and Sonia Gandhi as well. So there were multiple reasons at work, to bring about the Indian abstention. It’s remarkable that with just one passive act of abstaining from voting, the Indians have managed to rub the snouts of the Americans on the ground, put the Tamil Nadu politicians in their place, rehabilitate the image of the Indian central government both on the world stage and at home, and also put right its relationship with its southern neighbour.


Taking stock of the defeat


 The Indians may have gained much by simply abstaining from voting. But the hard reality for Sri Lanka is that she has lost the vote in Geneva and the UN Human Rights Commissioner’s Office has been empowered to carry out an investigation against this country. Until August this year, Navi Pillay will be in effect leading this investigation. The fact that she may have to retire after that does not mean that the objectivity of the investigation will improve when she is gone. She will be replaced by someone just like her albeit of a different nationality or ethnicity. In any case, the bulk of the work will be done by her and all that a successor will have is to put the finishing touches to the investigation report. It is true that reports have been written previously on Sri Lanka by no less than a team appointed by the UN Secretary General himself. The difference this time however is that while the UN secretary general’s report was not sanctioned by any UN body, the report that is going to be written by the UN Human Rights Commissioner has now been sanctioned by the UNHRC. Thus it will have the status of an official UN document (which Ban Ki-moon’s advisory panel report never had).


All officials of the UN from the Secretary General downwards are essentially, creatures of the West. It is the West that meets the bulk of the UN’s expenditure through ‘donations’ to that body. The office of the UN High Commissioner on Human Rights  which is the secretariat of the UNHRC is no different. Two thirds of its budget comes from western countries in the form of donations for earmarked tasks and whoever becomes the UN human rights commissioner is a creature of the West. What we have here is a situation where the Western nations sponsor resolutions in UN bodies sponsored by the West, and NGOs sponsored by the West make representations against the targeted country within these bodies sponsored by the West. Then the West arm twists countries that are dependent on the West for defence, economic aid or trade and they obtain the necessary majority to push their resolution through. After the resolution is passed, the investigation itself is carried out by employees of the OHCHR who are paid for and maintained by the Western powers and even the budget for the investigation would almost certainly have come from the West as an earmarked donation.


This is not a bona fide investigation. It’s a foreign policy putsch by the West and acquiescence and a willingness to please will not get us out of this pickle. Contrary to the usual practice followed by small weak countries, Sri Lanka should roar out its defiance against this inequity for the whole world to hear.  Figuratively speaking, it’s time to doff the coat and tie, get into a sarong, drink half a bottle of arrack and discuss foreign policy in Sinhala with the sarong held shoulder high. Sri Lanka has no option but to resist. Under no circumstances should anybody from the OHCHR be allowed to set foot in Sri Lanka. Nor should SL cooperate with the investigation in any way. Instead SL should continue to marshal support for its cause from around the world. The Australian reaction to the resolution against Sri Lanka was swift and sharp, telling the whole world that this was not the best way to go about things in Sri Lanka. The day before the UNHRC vote, three more US Senators Ted Cruz (R-Texas), Pat Roberts (R-Kansas), and Tim Scott (R-South Carolina) signed the pro-Sri Lanka  Senate resolution No: 364 thus bringing the total number of signatories to 14. This too is a significant development that shows the level of disquiet over the SL matter within the USA itself.


Another reason why Sri Lanka should resist this investigation is because we will never get a fair hearing.  The whole inquisitorial system that the Western powers have created through the UN is basically aimed not at seeing that justice is done but achieving the goals of the Western powers.  Before Navi Pillay became the Human Rights Commissioner she held another Western funded UN position - that of a judge in the International Criminal Tribunal for Rwanda. While she served on this tribunal, she handed down judgements which are masterpieces of inequity. Take for instance the case against Jean Kamuhanda, the minister of higher education in the Rwandan interim government.  He is now serving multiple life sentences imposed by Navi Pillay’s court. But how was evidence gathered to convict him? The manner in which Navi Pillay and her colleagues gathered evidence in the Kamuhanda case is indicative of the methods they will be employing in the Sri Lanka investigation. If anything, the methods adopted with regard to Sri Lanka will be even more lax since writing a report on Sri Lanka is not a judicial process. The ICTR judgement  against Jean Kamuhanda had a note on how they gathered evidence which went as follows:


* The trial chamber notes that it is not bound by any national rules of evidence. The Chamber in this case has therefore applied the rules of evidence which in its view, best favour a fair determination of the matters before it. (What this means is that those coming under the jurisdiction of these international criminal courts will not have the common safeguards available to any ordinary criminal under the normal law of the land in most countries since the rules of evidence in criminal cases which evolved over centuries has been jettisoned completely.)


 *  Many of the witnesses who have testified before the tribunal have seen and experienced atrocities. The recounting and revisiting such painful experiences may affect the witness’s ability to recount the relevant events fully or precisely in a judicial context. The Chamber recognises, in addition, the time that had elapsed between the time of the events in question and the testimonies of the witnesses. It is within the discretion of the Trial Chamber to evaluate any inconsistencies, to consider whether the evidence taken as a whole is reliable and credible and to accept or reject the ‘fundamental features’ of the evidence. The presence of inconsistencies in the evidence does not, per se, require a reasonable trial chamber to reject it as being unreliable. (Thus the ICTR has reserved to itself the power to accept even the most contradictory and inconsistent testimonies as evidence.)


*  Any discrepancies in the evidence given and the possible influence of third persons (ie; the ‘coaching of witnesses by interested parties) do not automatically exclude the Trial Chamber from relying on the evidence. However, the Trial Chamber should consider such factors as it assesses and weighs the evidence. (It goes without saying that in politically charged investigations, where the two sides to a conflict are still at war through litigation, there is the near certainty that witness accounts would be coordinated, altered, and even fabricated to achieve a certain objective. Navi Pillay’s court reserved to itself the power to disregard such concerns.)


*  The recollection and articulation of traumatic events is likely to impair the ability of witnesses to express themselves clearly or present a full account of their experiences in a judicial context. In addition, the time which had lapsed since the events in question took place and the difficulties in recollecting precise details several years after the fact, and the near impossibility of being able to recount them in exactly the same detail and manner on every occasion  need not be a basis to find the whole of a witness’ testimony unreliable. (Thus a ‘witness’ saying three different things on three different occasions is not a problem for Pillay et al. Those who sit in judgement will decide which of the three different things said by a witness will be accepted as true!)


 * The fact that a Witness may forget or mix up small details does not necessarily impugn his or her evidence given in relation to the central facts relating to the crime. Trial Chamber, after seeing the victim, hearing the testimony and observing the witness under cross-examination, will accept or reject the testimony. (Thus a judge from a different culture, who does not speak the language of the witness is to look at the face of the witness, and by an act of divination, establish that the witness is genuine and is speaking the truth.)


* The trial chamber notes that corroboration of evidence is not a customary rule of international law and as such should not be ordinarily required by the International Tribunal. (Navi Pillay et al thereby reserved for themselves the right to accept testimonies as evidence without any corroboration whatsoever through other witness accounts or through physical or scientific evidence.)


 *  Whether a Trial Chamber will rely on single Witness testimony as proof of a material fact, will depend on the circumstances of each case. It may be that a Trial Chamber would require the testimony of a Witness to be corroborated, but according to the established practice of this Tribunal and the ICTY, that is clearly not a requirement. The Trial Chamber may rule on the basis of a single testimony, if in its opinion the testimony is relevant and credible. (Thus Pillay would unhesitatingly use just one testimony without any corroboration at all, to hold that a crime took place. This is why the present writer insists that this is not a time to be discussing foreign policy in a suit and tie and that we have to move down to the sarong.)


 * The ability of the Chamber to rule on the basis of testimonies and other evidence is not bound by any rule of corroboration, but rather on the Chamber’s own assessment of the probative value of the evidence before it. (Thus the judges whim will be the deciding factor in a trial.)


* The Chamber may freely assess the relevance and credibility of all evidence presented to it. This freedom to assess evidence extends even to those testimonies which are corroborated: the corroboration of testimonies, even by many witnesses, does not establish absolutely the credibility of those testimonies. (This last provision may puzzle many readers. Why were Pillay et al unwilling to accept testimonies if there were many ways to corroborate what was said by a witness? This provision is for the tribunal to be able to reject any evidence being put forward by the accused to prove his innocence. Pillay et al were reserving to themselves the power to reject any and all testimonies that the defence would bring forward on the grounds that they did not find that testimony to be credible. Just make a wild guess as to how this provision will be applied to Sri Lanka!)


 * The rule that a Chamber may admit any relevant evidence which it deems to have probative value makes provision for the admission of hearsay evidence even when it cannot be examined at its source and when it is not corroborated. Accordingly, evidence, which appears to be ‘second-hand’ is not  inadmissible. (So even gossip that a witness may have heard from someone else can become evidence.)


 There is the mistaken belief in Sri Lanka, that an international court, will have better procedures and will serve the cause of justice much better than the national courts of any country, but the truth is exactly the opposite. International kangaroo courts like the ICTR and the ICTY were set up by the UN security council in the early to mid1990s when Russia was in a state of collapse and China had not yet become what it is today.  Therefore, they were not in a position to veto the setting up of these Western funded and dominated inquisitorial bodies. Besides, nobody knew how these international courts would turn out until they started handing down judgements. It is the culture of these kangaroo courts that Navi Pillay has brought with her to the position of UN Human Rights Commissioner. Her successor who will replace her this August will also come from the same set up. And thus Sri Lanka can never hope for a fair hearing. This is why defiance is the only option.


 One thing Sri Lanka can and should do is to stop paying the annual fees for the maintenance of dens of inequity like the ICTY and the ICTR. Because these two international criminal tribunals were set up by the UN security council, all members of the UN have a pay a fee for their upkeep and even Sri Lanka pays about 80,000 USD a year for the upkeep of the ICTY and the ICTR. The first thing that we should do is to stop paying this money on the grounds that the country has no money. We should join up with Russia in not paying the assessed annual fee to the ICTY and canvass all friendly countries including China to join the boycott of these kangaroo courts and to place the entire burden of maintaining them on the Western powers for the rest of their duration. It is a sin against both God and man to use Sri Lankan taxpayer money to help maintain international kangaroo courts whose only purpose has been to pervert the course of justice and undo the procedures and practices that had evolved over centuries to ensure a fair trial and a fair hearing for a defendant.


 
 
 
 
 
 
 
 
 
 
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