Making Strauss-Kahns of the Rajapaksas


At the UNP parliamentary group meeting held last Tuesday, the UNP showed some slight signs of thinking like a party that once wielded power and one that had hopes of wielding power once again. Matara district parliamentarian Buddhika Pathirana raised the issue that the UNP had to have a stand on the Malabe private medical school matter. In reply party leader Ranil Wickremesinghe enunciated some points which would form the basis of the UNP policy on the issue - it had to adhere to the guidelines laid out by the UGC, the course of studies had to maintain an acceptable standard, and underprivileged students should be allocated a certain number of slots in the medical school. A committee comprising of Tissa Attanakake, Kabir Hashim, R.Yogarajan, Buddhika Pathirana and Eran Wickremeratne was appointed to study the matter further.

The important thing was that there was no attempt to pander to the medical mafia that is opposed to the private medical college. In the mid-1980s Wickremesinghe himself as a member of the UNP cabinet experienced at first hand the manner in which the medical mafia could interfere with government policy and he seems to have decided that for any government to govern, some power centers have to be brought to heel. In fact, if the UNP government had succeeded in the mid-1980s, this issue would no longer be a matter to be discussed.

Some’s exemplary


The present writer was the first political columnist in an English newspaper to give the JVP regular mention in the Sunday political column. They were at that time, riding high with no less than 38 parliamentarians. Later, they adopted the lemming-like policy of marginalizing themselves and after a while, there was no point in making mention of them any longer as nothing that they did would really interest the reader. The JVP has suffered another split and the only reason why that made it to the headlines is because the newspapers did not have anything better to talk of in the past several days. The split makes little difference to the fortunes of the JVP. It had already fallen so low that the loss of a few more party functionaries would not make a difference.

Even though the present split may look like an organized departure, the present writer was told by one of those who had broken away that this was due to problems that had been simmering for a long time and each person had come to his conclusions individually, and there was no real collective decision making as in the case of the group that left with Wimal Weerawansa. Many of those who have broken away this time had for instance, opposed the JVP’s plan to field a common opposition candidate at the 2010 presidential elections. In fact the Inter-University Students Federation (IUSF) controlled by the JVP did not support Sarath Fonseka’s candidacy and they made a public announcement to that effect. But at that time, many people thought it was just a ruse to give out the impression of being an independent, non-political organization. But it now turns out that the student section of the JVP had been opposed to Fonseka being the JVP endorsed candidate.

One student leader had in fact asked Anura Kumara Dissanayake, the main promoter of Fonseka, what would happen if Fonseka wins. To this Dissanayake had simply said "He will not win." The present writer wrote how relieved some members of the UNP were when Fonseka lost the presidential election. So now it turns out that the UNP did not want him to win, the JVP did not want him to win and just before nominations, Mangala Samaraweera had announced in a newspaper interview with an Englsih daily (not The Island) that if Fonseka was going to be the candidate, he would rather support Mahinda Rajapaksa, which meant that deep down, he too would not have wanted Fonseka to win. Thus it turns out that in the Fonseka camp only Fonseka himself wanted to win – which in part explains the 1.8 million gap. Be that as it may, the main grouse of the JVP dissidents is that their party has not been presenting an alternative to the people as they should be but forming various alliances which seemed to be aimed at maintaining a presence in parliament and merely surviving politically - nothing more.

This is a sorry end to the successes that the JVP achieved after 1994, by coming into the democratic mainstream. Under Somawansa Amarasinghe’s leadership, the JVP rose to heights that Rohana Wijeweera could have only dreamed of. For the first time they had a mass base in the country, the people were voting for them out of choice and they had 39 MPs in parliament. But over the past few years, all that was lost in a series of ill-conceived decisions. Somawansa’s greatest achievement was in allowing a young set of new leaders more talented than himself to come up in the party. Wijeweera would never have allowed that. It was these younger leaders, foremost among whom was Weerawansa, who gave the party a new look and a popular base. In allowing many young people more talented then himself to be in the limelight, Amarasinghe did what very few political leaders would have done.

Another thing that no political leader would have done is allowing genuine democratic decision making to prevail within the party. Wijeweera never had democracy in the JVP and his word on anything was final. Under Amarasinghe, however, the JVP had genuine internal democracy. How genuine this democracy was can be gauged from the collection of internal documents that Weerawansa published. On an application made by the JVP the courts subsequently banned the publication of these documents. In making decisions, Amarasinghe did not lay down the rules, but argued his case with the others and he was only one amongst equals and if he was over ruled by the others he would abide by the majority decision. So Amarasinghe set an example that very few political leaders can match.

Even the fact that the JVP shot itself in the foot with an ill-conceived decision to distance themselves from the Mahinda Rajapaksa government, is not Amarasinghe’s fault as he held the same position held by Weerawansa that they should be an integral part of the Rajapaksa government. The difference was that Weerawansa was not prepared to bow to the majority decision whereas Amarasinghe was. As we said earlier, this latest split is not really the result of many people in the party coming to their own conclusions over a period of time and it can be described more as an implosion rather than a split. Many of those who left will not be politically active hereafter. This is the exodus that should have come after the 2010 presidential and parliamentary elections, but did not. The notion that they are going to set up a ‘revolutionary party’ under Kumar Gunaratnam is laughable. Even if feints are made of setting up a radical party to do what the JVP is not doing, it will be only to give these exhausted ex-JVPers an honourable and face saving exit from revolutionary politics.

Dodging justice?

Last week, the focus was on foreign affairs with the president being at the UN and the UN Human Rights Council being in session till the end of this month. Sri Lanka’s foreign policy thrust these days seems to be focused entirely on dodging a war crimes probe that the west seems determined to institute against Sri Lanka. At times this makes Sri Lanka appear almost like a fugitive from justice. To make things worse, there are local politicians who are also in favour of probes into war crimes against Sri Lanka. Ex-army chief Sarath Fonseka was the first Sri Lankan politician to say during the 2010 presidential election campaign that he is willing to testify at any international war crimes tribunal and that heroism was not dodging war crimes probes but ascertaining whether war crimes were committed and punishing those responsible.

We have not heard Fonseka speaking about war crimes probes after the presidential elections, but since he has not retracted what he said earlier on the subject we assume that he still holds the same views. In Sri Lanka, any local politician calling for a war crimes probe makes it to the headlines because it’s deemed to be a taboo subject and only the very brave or the very foolish will even touch it. The feeling is that calling for a war crimes probe will antagonize the people because public opinion is against a war crimes probe. Given the fact that all of Sri Lanka’s energies these days seems to be directed at dodging a war crimes probe, it would be pertinent to look at what we are trying to dodge.

International war crimes probes are a fairly recent phenomenon. The Nuremburg trials in the wake of the second world war, would not really qualify as war crimes probes because that was a case of the victor punishing the vanquished with trials and executions. The view currently prevalent is not of the victors punishing the vanquished, but of an international court meting out justice in cases where grave war crimes have been committed in international or national conflicts and where local redress was not available. The international mechanism to probe into allegations of war crimes in Yugoslavia and Rwanda were pioneering efforts in this direction and the efficacy or otherwise of an international mechanism to probe into war crimes can be gauged from the success or otherwise of these experiments in Yugoslavia and Rwanda.

As in the case of the former Yugoslavia and Rwanda, the Sri Lankan case also involves an internal conflict. Furthermore, unlike the trials against Japan and Germany in the wake of WW2, where plenty of documentation was available, the trials in Ruwanda and Yugoslavia are based entirely on oral testimonies of witnesses. This is another similarity with the Sri Lankan case where there is no documentation and only the accounts of witnesses are being quoted by all the reports that have alleged human rights violations in Sri Lanka. If the western countries manage to get a war crimes probe against Sri Lanka instituted, we will be basically going over the ground already covered by the trials concerning Yugoslavia and Rwanda. The latter have come in for a barrage of criticism by international jurists and other experts. The following points which are all relevant in the case of Sri Lanka are particularly noteworthy.

* One article in the International Journal of Human Rights co-authored by Stephen D. Roper of the Eastern Illinois University, makes the fundamental point that in the trials pertaining to the former Yugoslavia, the primary reliance is on witness accounts, but with the passage of time, recollections become nebulous and unreliable. (The same applies to Rwanda as well.)

* Hassan B.Jallow the then chief prosecutor in the Rwandan war crimes trials admitted that the international war crimes probe was seriously handicapped by the fact that the investigators were all foreigners and had to work through interpreters. He had admitted that nuances were lost in translation and that this may have the potential to distort what a witness may have said or meant. Jose Alvarez, a Professor of Law at the Columbia Law School in the USA, expanding on what the chief prosecutor said, has pointed out that when trials are conducted with the aid or interpreters, and without knowledge of local culture or manners, misunderstandings at all levels are bound to occur. He pointed out that in trials related to Rwanda judgments had been delivered without the judges being unable to assess whether the witnesses had actually witnessed the events they were relating or whether they were reporting what others had seen and told them. Professor Alvarez expresses his doubts whether the judges came to the correct conclusions in such cases.

* In the former Yugoslavia, the number of Muslim civilians supposed to have been killed was 8,000 but the number of remains found was that of 3,568 individuals. Of these, 1,583 were just fragments of bodies, just one bone, a skeletal foot in a boot or a thigh bone and it was impossible to determine the cause of death. Christopher Lawrence, a pathologist from Australia who was a prosecution witness in the Yugoslav trials, had explained that when a body decomposes, the tissue and the ligaments dissolve and the whole body comes apart and where only fragments of bodies were available the cause of death cannot be determined.

That left only 1,985 bodies to form conclusions on. Even out of that, in another 411 cases it was not possible to determine the cause of death because the bodies were not complete and some of them did not show any signs of bullets or shrapnel. Of the remaining, 1,574 bodies, around 655 had bullet wounds but on that circumstance alone it could not be determined that they were executed as they could just as easily have died in combat. It could not be proved forensically that any of the bodies in the Yugoslav case were the result of executions. Conclusions were arrived at only on the basis of circumstantial evidence. Around 442 bodies of the bodies found had their hands bound or were blindfolded, leading to the conclusion that they were executed. There were also some old people and women and children leading to the conclusion that they were non-combatants.

In a place like Sri Lanka, even the latter would prove nothing. If bodies were found with their hands tied and with blindfolds, those could just as well be executed terrorists as well as executed soldiers unless there were other identifying items such as dog tags or clothing. The presence of old people or women would mean nothing as they could just as easily be LTTE women’s cadres or auxiliaries. That the LTTE trained civilians of all ages with a view to making use of them in offensive operations was commented upon by Phillip Alston the former UN special rapporteur on extrajudicial killings. Even the bodies of children found will not lead to any conclusion that these were massacres of non-combatant children because the LTTE was well known to recruit children. In fact one UNICEF worker observing a contingent of LTTE child recruits were told by senior LTTE cadres that because of poor nutrition, their cadres looked younger then they actually were! The UNICEF worker for her part, figured out the probable ages of the LTTE’s fighters by the fact that the voices of the boys had not broken and the girls were not showing any signs of puberty. So in Sri Lanka, a child found in a grave would have to be really young to be declared with certainty to be a non-combatant.

In criminal cases, judgment cannot be delivered on the balance of probability. A point has to be proved beyond reasonable doubt that the crime was committed. In Sri Lanka’s case, the main allegation is not that members of the LTTE were executed after capture, but that large numbers of civilians were killed in indiscriminate shelling. The figure of 40,000 mentioned in the Ban Ki-moon panel report is that of civilians killed. Not even a guesstimate is available of the number of LTTE combatants killed. In fact as we have pointed out earlier in this column, none of the reports that have made allegations of civilian deaths in Sri Lanka have ever said anything about the number of LTTE deaths or the way they separated the combatants from non-combatants. In fact no one has reported seeing any dead or wounded LTTE cadres. Reading these reports, (including that of the Ban panel) the reader is left with the impression that there were only two parties to the conflict, the army and the Tamil civilians. Even in the Yugoslav trials the question of distinguishing combatants from non-combatants was an important consideration.

If a mass grave is found in Sri Lanka with many bodies showing signs of gunshot injuries and/or shrapnel damage, how can anybody be sure that these are non-combatant civilians and not the missing LTTE combatants that everybody fails to mention? That the LTTE was using even civilians as auxiliaries is so well known that even the NGO known as the International Crisis Group which put out a report in 2010 have said in black and white that they are willing to write off anything up to 30,000 civilians as LTTE auxiliaries who may have been killed legitimately while they were taking direct part or in aiding and abetting in LTTE military operations.

In Yugoslavia, the only sign of executions were the blindfolds and ligatures that the hands were tied with. If hypothetically, a war crimes tribunal is established in Sri Lanka, and a mass grave is discovered, if there are no blindfolds or ligatures to be found, there will be no way of even hazarding a guess whether the bodies were that of combatants or civilians. Moreover, if the ligatures were made of perishable material, even if these had been executions, there would be no ligatures by now to prove it. In the Sri Lankan case too, the prosecution will depend on witness accounts which again will have limitations in translation as in the Rwandan case. Even now there are problems of translation as in the Channel 4 documentary on Sri Lanka where what is said in Tamil was contested by the government.

Channel 4 is based in Britain where there is a large Tamil population and if glaring errors in translation could occur even in publicly broadcast material in such a country, when Tamil witnesses are being interviewed by prosecutors from Latin America or Eastern Europe there will be even worse errors. Much about the trials pertaining to Yugoslavia and Rwanda smacks of Kangaroo courts and there is a body of opinion building up internationally against these war crimes tribunals. Many jurists are appalled that the standards of evidence in these trials detract significantly from the established legal standards of most member nations of the UN.

In Yugoslavia, the number said to be executed was 8,000, but the number of bodies found with the only discernible sign of execution (the afore mentioned blindfolds and ligatures) were much less than that; and when the numbers go down, there is the possibility that such executions could be isolated and localized incidents and not part of an overall policy of extermination. Western observes of the trials in Yugoslavia have expressed their concerns about that fact as well because an isolated incident cannot be used to penalize all those up and down the chain of command as guilt has to be proved beyond reasonable doubt. So these tribunals on Yugoslavia and Rwanda are functioning amidst much misgivings and criticism. A judicial process that is called into question by so many people, on so many counts, cannot possibly be expected to gain legitimacy in the eyes of the world; and without acceptance, this experiment in international war crimes tribunals is bound to end up a dismal failure.

Thus, even if a war crimes tribunal is established against Sri Lanka, nothing may be achieved in terms of obtaining convictions. But as in the case of the unfortunate IMF chief, Dominic Strauss-Kahn, those holding office can be made to lose their jobs. In fact the present thrust of the western powers against Sri Lanka seems to be aimed only at making Strauss-Kahns of the Rajapaksas. Highly exaggerated numbers of possible casualties are being mentioned to shock the world. When the head of Amnesty International’s UN office held a screening of the Channel 4 documentary "Sri Lanka’s Killing fields," in New York, he was trying to make up for the lack of evidence with vocabulary with the liberal use of terms like ‘gruesome’ ‘heart rending’ ‘unbearable’ etcetera. The idea seems to be to hypnotize the community of nations to get the matter to courts. What happens thereafter is irrelevant as in Strauss-Kahn’s case. The latter lost everything except his liberty and that’s what the west wants to do to the Rajapaksas.

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