Paranagama report could serve no purpose in Geneva



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Dr. Godfrey Gunatilleke, Chairman Emeritus of Marga Institute


by Darshanie Ratnawalli


Mangala Samaraweera, the Foreign Minister of Sri Lanka speaks at an election rally in Kamburupitiya (https://www.youtube.com/watch?v*LPn_LfeUXfA). It’s 26 July 2015. He is talking about the war. His ignorance of its progression seems beyond belief. "The Rajapaksas merely grew the war and benefited from it. We won the war in 2010. We are happy about it. It was not the Rajapaksas who won this war but the Armed Forces of this country. Every government of this country helped set the stage for that victory. Before they gave the government to us in ‘94, President D. B Wijetunga and Prime Minister Wickremesinghe together liberated the East from the LTTE. After ‘94 Chandrika Kumaratunga liberated the Jaffna peninsula which was under the LTTE; Prabhakaran’s office was in the Jaffna Kachcheri. That time, under that government, the war heroes chased the Tigers from Jaffna and restricted them to the jungles of Mullativu. It was only after that that Mahinda Rajapaksa defeated even those remaining tigers dwelling in that jungle."


The war was won in 2009 not 2010. While that might be a minor ministerial slip, the huge gap in the Foreign Minister’s knowledge about the liberation of the East is difficult to justify. The final war or Elam War IV was not a remnant jungle war fought in the Wanni after successive pre-Rajapaksa governments had driven the LTTE into the jungles of Mullativu. The first phase of the last Eelam war was fought in the Eastern province from July 2006 to July 2007, with the entire country and the world watching in suspense. Starting with Mavil Aru and ending with Thoppigala, it featured such highlights as the then Opposition Leader Wickremesinghe’s famous Thoppigala speech. With the capture of Thoppigala on 11 July 2007, the Sri Lankan Armed Forces attained their objective of clearing the entire Eastern Province of the LTTE after one year of military operations. The world’s intense focus may be on the last phase of the Wanni war, yet no serious assessment of it can afford to blank out the Eastern war.


One crucial difference between the Eastern war and the Wanni war may provide the key to understanding the motives of the last phase of the Wanni war. The SL military operations in the Eastern war did not draw war crimes allegations. Civilian casualties never became an issue. That the war was fought in a manner designed to minimise civilian casualties and that civilian casualties were minimal was accepted by all parties. It was in the Eastern war, specifically in the battle for Vakarai waged from 30 October 2006 to 15 January 2007 that the SL Army first encountered the LTTE’s strategy of using the civilians as a human shield and hospital premises as an artillery launching pad. This drew from the SLA, a counter strategy which prevented a major humanitarian tragedy and demonstrated an intention to avoid civilian casualties.


Without a frontal assault on Vakarai, the deep penetration unit of the SL Army infiltrated the area under the LTTE and launched surprise attacks. This tactic caused the LTTE to engage with the SLA, diverting some of its cadres from their task of holding the civilians captive and providing opportunities to the civilians to escape into the area under SLA control. The Eastern war also differed from the Wanni war by placing a multi ethnic civilian population at the disposal of the LTTE. As the Vakarai experience demonstrated, compared to the homogenous civilian population of the Wanni, this population proved less amenable to be held hostage. It was reported by NGOs who were active in the area that the Mullahs defied the LTTE and led the Muslim civilians out of Vakarai.


It was also in the Eastern war that the location of LTTE armour and equipment in a hospital and the use of UN and NGO property by the LTTE- boats, vehicles, tents - for military purposes came to the notice of the SL Army. This may have ‘educated’ the SL military that prima facie non-military objects aren’t always what they seem and that UN symbols and designated humanitarian locations sometimes hide the Tiger. This may help to explain some of their military decisions with regards to hospitals and UN/INGO locations in the Wanni war.


Extrapolating from the intention and reality of the above election speech by the Sri Lankan Foreign Minister, is the government’s frontline response to the Geneva intervention fortified by adequate intellectual resources? Is the Geneva Resolution essentially a good thing? How can we use it to further our national interest? Are the politicians in power big enough to rise above party rivalries? Dr. Godfrey Gunatilleke, Chairman emeritus of Marga Institute and co-author of Narrative III, from which the above narration of the Eastern war is drawn, spoke to Sunday Island about related issues in this final instalment of our conversation.


Q- How do you assess some of these pronouncements of the Foreign Minister?


A- I don’t want to comment on people but he was very strong in his condemnation of the Rajapaksa regime. He made very strong allegations. That may be counterproductive to the process of reconciliation. Some things are said in the heat of victory. Let’s hope these things get tempered. The spirit of this whole process should encompass everyone who takes part.


Q- How do you see the government’s decision to not table the Paranagama report in Geneva?


A- If the strategy was to get a consensus resolution, what are you going to gain by tabling the Paranagama report? Are you going to confront the OHCHR report with the Paranagama report and get into a debate on that? What our diplomatic people did; I was reading their 15 September statement; it said nothing about the OHCHR report itself. They talked about the process, that we are now going in, we are committed to do these things, we take account of what the OHCHR report says and stopped there. It did not say, these parts of the report we can’t accept. It did not go into that at all. It was part of their diplomacy. That can come later. We can’t raise that at this point of time. The main objective was to get a domestic process approved by the UNHRC. They achieved that. It’s an excellent opportunity.


Q- You think tabling the Paranagama report would have hampered that process?


A- It would have distracted from the objective. It would have given room for them to say: here’s another report which does not come to very much. What can we expect from a domestic report? Rather than have that, bring it out when you need to. Let it feed into the domestic mechanism. Like the OHCHR report the Paranagama report is ex-parte. It did not get the evidence of people who went before the OHCHR. It’s the other side. Now we are expecting that all this will come together.


Q- In a hybrid mechanism?


A- Well, it’s not hybrid. Hybrid as given in the OHCHR report suggests something in which foreign judges will be nominated by them like in Cambodia and Lebanon. We won’t have that. We won’t have UNHRC nominating our judges. The choice is ours. It won’t be hybrid in that sense. It will be hybrid in the sense that we will be bringing in international expertise to give credibility to this mechanism. I am with it.


Q- Do no parts of the resolution ring alarm bells in your mind? What about the bit about "ensuring that no scope exists for retention in or recruitment into the security forces of anyone credibly implicated through a fair administrative process in serious crimes involving human rights violations or abuses or violations of international humanitarian law?"


A- What it means is that there should be a process of vetting which keeps those persons guilty of having committed crimes away from high office. An administrative process is one which applies the findings of a court. Guilt is determined by a judicial process.


Q- The Resolution presses for the demilitarisation of the North?


A- We have already said that we are committed to demilitarisation. We don’t need a Resolution to recommend that to us. De-militarisation can be interpreted in many ways. We will have our Army outposts in the North as we have in rest of the country. We will have a military presence. But the Army will be withdrawn from the civil administration of the North. It’s already happening.


Q- Haven’t we been too limp wristed in our response to the report and the Resolution? Don’t we need a more robust taking care of our own interests?


A- We certainly have to take care of our interests. I was quite pleased at Ravinatha Aryasinha’s criticism of the first draft of the Resolution where he said, this is repetitive, prescriptive judgemental, this is not what we want. And we got an amended Resolution which is substantially different. All those prescriptive "we call upon’s were changed to "we encourage Sri Lanka to do this". You can’t really confront the Western Nations. It’s unrealistic. It would have been realistic if we had achieved consensus here; reconciliation, political solution…We were getting nowhere there. That’s why a confrontational position wouldn’t have got us anywhere except putting us into more and more difficulties, even economically. Individual countries could have followed policies that were harmful to our economy. We have Russia and China in the Security Council but it doesn’t mean bilateral action couldn’t have been taken.


Q- Do you think the previous government missed a chance? When all these dominant narratives were being established, Darusman’s, etc. should they have offered to co-author them or contributed to them by supplying them with information from their side?


A- There was a problem. The agenda was directed against the regime that existed. I have no doubt that one of the objectives was to change the regime. They felt that they could not have a credible inquiry with that regime in place. The leaders of that regime were also involved in the whole process of fighting the war. Under those circumstances the regime would not have opened up. There was always the overhang of a war crimes tribunal.


Q- They had things to hide?


A- No. It’s like an innocent man being told not to talk about it by a lawyer because the things said can be held against him. The legal advice would have been not to cooperate because you can’t control a process which is implemented from outside. Today it’s not like that. Today we can control the entire process.


Q- How?


A- Because today it’s a domestic inquiry led by the government, owned by the government.


Q- With the participation of foreign judges?


A- We select the judges in consultation. Why should we not? I have always argued; how do we set up a credible mechanism to inquire into this, credible to the Tamils, credible to the rest of the world, and credible to ourselves? I don’t think you can do that exclusively with a local system. You need to bring credibility to the system you are setting up by bringing in an international panel of experts to preside over, but don’t lose control over the process. I think it can be done. Foreign judges are basically judges who will apply the law.


Q- But will these judges be above our judiciary like the British Privy Council we could appeal to under the Soulsbury Constitution? Isn’t that a constitutional regression?


A- There were some very good judgements as well as bad judgements from the Privy Council. That is quite possible in this case. But the point is foreign judges are governed by the law they practice. There is no reason to think that they will be biased. I don’t know how they are going to set it up. Will foreign judges be an advisory panel? But some involvement which shows that this is an open, transparent process is necessary to bring confidence to all stakeholders. It’s pointless to have an inquiry if it doesn’t lead to an acceptance by all parties. The South Africans were able to do that. Both the whites and the blacks accepted it. And they came together and set it up. We must find an equivalent. Now it’s very promising. We have a large part of the TNA and the Tamil Diaspora ready to go along with this process. However this should not be impelled by a desire to bring punitive justice to people you don’t like. With the regime change there was a statement made by Mr. Ranil Wickremesinghe that President Rajapaksa won the war against terrorism.


Q- But was winning the war a good thing? The dominant view held internationally and by internationally funded civil society groups is that the war should not have been fought, the LTTE shouldn’t have been defeated.


A- Yes. A lot of them feel that we should have continued to negotiate and not resorted to war.


Q- They feel that an equation to produce a political solution demands the LTTE or something like it?


A- It was a theory held by many people. Even the Tamils perceived that having the LTTE enabled them to extract from the government the best possible deal. This theory assumes that the government was prepared to come to a settlement only if it had the threat of great violence. I don’t buy that. But I think we should always have tried to take the ethnic relations in a direction which avoided war. But once the LTTE came into being as a terrorist organisation, now looking back, it seems that there was no alternative but to defeat them militarily. Though some of us felt that, for one thing a military defeat may not be possible for various reasons - even many of the Army Commanders felt this - for another, that it would lead to such a vast fallout in terms of human suffering that it may not be worth it.


Q- You still subscribe to that idea?


A- No. I think defeating the LTTE was a very positive thing. Eliminating terrorism to the extent we have been able to, is a major achievement.


Q- It must have taken tremendous courage to rise above the dominant zeitgeist that it couldn’t, shouldn’t be done and then go ahead and do it?


A- Yes we should quite appreciate the fact that it came out of a major combined effort of the political and military leadership. Both changed and both came together. It is a major achievement. It would be counterproductive to deny adequate credit for the defeat of terrorism. These are inter-Party rivalries.


Q- Do you think we can rise above these?


A- We have the opportunity now. Whether we will be able to do that will depend on leaders who are in power as well as leaders out of power. To place the interests of the country and society above all requires….


Q- Big men?


A- Yes. In South Africa both Mandela ad Clerk had that capacity. They ran risks. But they were ready to do so.


– @ http://ratnawalli.com / and rathnawalli@gmail.com


 
 
 
 
 
 
 
 
 
 
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