Sri Lanka Elections under the Shadow of War Crimes
by Michael Patrick O'Leary
Sri Lanka elections under the shadow of war crimes
It is commonly held that war crimes trials are the prerogative of the victor. For example, at Nuremberg there was no consideration of the fire-bombing of Dresden, 65 years ago this February. Original estimates put deaths at 250,000; now they are nearer 40,000. Some historians argue that the allies had no military justification for the attack, making it a horrendous war crime.
With Sri Lanka, the reverse is true: there seems to be greater interest in the alleged crimes of the victors than of the losers. The US Secretary of State, Hillary Clinton, accused the Sri Lankan government of using rape as an instrument of war in its defeat of the LTTE (Liberation Tigers of Tamil Eelam). She withdrew the claim when pressed for evidence.
Sarath Fonseca, the Sri Lankan contender for the presidential elections on 26 January, said, in an interview in the Sunday Leader with its editor Frederica Jansz on 13 December 2009, that an embedded journalist told him the defence minister, Gotabhaya Rajapaksa, had ordered the army to kill surrendering LTTE leaders and their families. Although Fonseka later claimed he was misquoted (1), his allegation has added to international pressure for an investigation into war crimes.
There is another controversy that refuses to go away. This surrounds a video allegedly showing government soldiers executing unarmed Tigers. The government produced experts who attested it was a fake, but the UN human rights investigator Philip Alston said, in a letter to the Permanent Representative of Sri Lanka at the UN’s Geneva office on 18 December 2009, that three independent experts believe the video to be authentic. Alston conceded there were “a small number of characteristics of the video which the experts were unable to explain” but added: “Each of these characteristics can… be explained in a manner entirely consistent with the conclusion that the videotape appears to be authentic.”
There are more general accusations: for instance that government forces shelled hospitals and civilian areas without due regard for non-combatant casualties.
The Sri Lankan government was without doubt the victor in the war against the LTTE. After 30 years of vacillation by successive governments, the LTTE was resoundingly defeated in May 2009. Since the conflict ended, there have been no terrorist attacks from vestigial remnants of the LTTE. Children go to school and come home again without being dismembered. People go shopping and travel on buses without being blown to giblets. Whatever its faults, which are legion, the government receives much credit for this from the populace.
The LTTE leadership in Sri Lanka was killed. The chief arms supplier, KP, is in custody and is (seemingly happily) providing information to the intelligence services (rumoured to be in luxury accommodation with an endless supply of beautiful women. The CIA might consider this tactic). Lower-level Tigers are being rehabilitated and found employment. All the inmates of the IDP camps are now free to go, and the A9 highway to the north has been re-opened.
On 14-15 January, Trinity College Dublin hosted an international hearing organised by the Permanent People’s Tribunal (PPT). The aim was to investigate allegations that the Sri Lanka government and its armed forces committed war crimes and crimes against humanity during the final phases of the war against the LTTE. The PPT is a prestigious body founded in June 1979 in Italy by law experts, writers and other intellectuals. It succeeded the “Russell Tribunals” (the International War Crimes Tribunal) which held two sessions in 1967 to expose the war crimes committed by the US against the Vietnamese people.
The PPT chairman Francois Houtart read out the preliminary findings on 16 January: they said the Sri Lanka government was “guilty of War-Crimes” and “guilty of Crimes against Humanity.” The tribunal also concluded that the charge of genocide required further investigation. It added that the international community, particularly the UK and US, share responsibility for the breakdown of the peace process.
The PPT seems to be saying that the international community was at fault for not supporting terrorists strongly enough. The PPT seems to be saying that the international community was at fault for not supporting terrorists strongly enough. In a statement which will be seen as nonsense in Sri Lanka, since it misleadingly conflates the concept of the Tamil people with Tamil terrorists, the PPT said the EU, in particular, had been complicit in the obstruction and dismantling of the peace process and stigmatising of Tamil groups by banning the LTTE. The website Unite Sri Lanka commented on 19 January: “The tribunal seems to have come to some very strong conclusions very quickly. Lacking in jurisdiction, and by not having access to all the facts or the time to examine them thoroughly, all this tribunal has really done is to open wounds that are healing and stoke up divisions.”
Even before the judgment, the Sri Lankan government said the PPT would do nothing to further permanent peace efforts in Sri Lanka, but would pose a serious threat to the country’s stability. A Presidential Secretariat press release on 15 January 2010 claimed the timing was designed to influence the presidential elections, suggesting political motivation, and added: “We strongly condemn any unaccountable organisation, whether it purports to be a quasi-legal entity or not, irresponsibly distorting events and seeking to selectively pass judgment from afar.” The statement went on to claim that the members of the tribunal should instead be helping Sri Lanka to unite and move on at the end of a terrible conflict.
Fonseka’s allegation puts him in a tricky position because it makes him seem disloyal to his own troops and not in full control of them. War crimes investigations are likely to put Fonseka himself in the dock and jeopardise his green card status when he visits his family in Oklahoma or carries out state visits if he is elected president. As noted, Fonseka has been retreating from the allegation.
How do we define the concept of war crimes? The Nuremberg Tribunal Charter defined crimes against humanity as “murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population before or during the war, or persecutions on political, racial or religious ground.” War crimes could be said to be the violation of national and international laws and customs regarding the resort to war and the conduct of war, and other activities associated with war. At the end of the first world war, there was some talk of putting the German war leaders on trial, particularly the hated Kaiser, but there was a tacit recognition that it might not be such a good idea to delve too deep into who did what to whom and when.
Will it help reconciliation in Sri Lanka to delve too deep?
One of the most significant of the Nuremberg Principles was that war crimes were subject to universal jurisdiction. That means Sri Lankan politicians and even fairly low-ranking army personnel might be arrested when travelling abroad, as was General Pinochet. The Sri Lankan Army cycling team has already been refused entry to Ireland!