The much feared report is now out and it says little in terms of any new allegations. Many an allegation found in the report prepared by a panel appointed by the Office of the Human Rights High Commissioner has, by and large, been already thrown at Sri Lanka by human rights groups such as Amnesty International and Human Rights Watch.  Even Sri Lanka’s very own Lessons Learnt and Reconciliation Commission has dealt with some of them, though not to the satisfaction of the international community, which is, in this case, a euphemism for the United States and its Western allies.

What is new in the report is its recommendation that a hybrid court including international judges and prosecutors be set up.  Though the UN Human Rights Commissioner Zeid Ra’ad al-Hussein did not cite any examples of a hybrid court, he probably meant something similar to the Cambodian war crimes tribunal or the tribunals that were set up in East Timor and Kosovo.  

Cambodia’s hybrid tribunal, officially known as the Extraordinary Chambers in the Courts of Cambodia (ECCC), was established by a 2003 treaty between the Government of Cambodia and the United Nations to try those who were responsible for more than one million civilian deaths between 1975 and 1979 during the Khmer Rouge regime. 

The 24-year delay in appointing the Cambodian tribunal tells a different story -- the United States and its Western allies were trying to manipulate the world body and prevent any exposure of their complicity in the crimes committed by the butchers of Cambodia.  At the West’s insistence the scope of the ECCC inquiry covered only the Khmer Rouge crimes and did not focus on international support the killer regime received while it was massacring the Cambodians -- and it continued to receive even after its leaders and supporters had found refuge in Thailand following Vietnam’s intervention.  The US, its Western allies and even China did not mind whether the Khmer Rouge killed a fourth of Cambodia’s population as long as the killer regime remained an enemy of Vietnam and the Soviet Union.  The underlying norm of the West was “the Khmer Rouge rulers may be brutes, but still they are our brutes”. This US foreign policy norm had its origin during Franklin D Roosevelt’s time.  When US officials raised concerns over horrendous human rights violations by the Samoza Garcia regime in Nicaragua, the then US President is reported to have remarked, “Somoza may be a son of a bitch, but he’s our son of a bitch.” 


United Nations (UN) Human Rights High Commissioner Zeid Ra’ad Al Hussein commenting on the report on Sri Lanka on Wednesday at the United Nations Office in Geneva. AFP

Is Sri Lanka’s new government trying to fit into this US foreign policy criterion to qualify for US support? It appears to be so. It may call it prudent diplomacy or political realism.  Yes, the Government has little or no option but to carry this label if it wants to extricate itself from the trap which it has been pushed into by the myopic policies of the Mahinda Rajapaksa regime.  Or it can, come what may, go with China, become more pro-China than the Rajapaksa regime and make Sri Lanka virtually a Chinese colony with military bases and listening posts.  Whether Sri Lanka goes along with the West and agrees to a hybrid tribunal or defies the West --with China’s fullest support -- Sri Lanka’s sovereignty will be undermined either way. 

The similarity between the Cambodian hybrid war tribunal and the proposed Sri Lanka war tribunal does not extend beyond the composition of the court -- that they include both local and foreign judges. The circumstances, however, differ. In Cambodia’s case, it was a post-Khmer Rouge government in Phnom Penh that called for an international tribunal while in Sri Lanka’s case, a hybrid tribunal is being forced on it.  In no way, can the war crimes in Cambodia be compared to what is alleged to have been committed by Sri Lanka’s security forces.  In Cambodia’s case, the killings were part of government policy whereas in Sri Lanka’s case, the alleged crimes have occurred in the heat of war.  In any war, a zero civilian casualty policy is a myth. The hawkish West, more than any others, knows it best. Civilians were killed in Afghanistan, Pakistan, Iraq and Libya as the West went for its targets.

When confronted with, the Western powers dismiss the civilian deaths as collateral damage or in cases where there is overwhelming evidence to suggest their troops have committed serious crimes, they hold show trials or half-baked inquiries.  The British government, for instance, has refused to share some of the key documents with the Chilcott Commission that is probing Britain’s involvement in the Iraq war.

But can Sri Lanka say ‘collateral damage’ and get away?  Reports say even the fresh US draft resolution being prepared in consultation with the Sri Lankan government would support the OISL recommendations, including the setting up of the hybrid court.  Sri Lanka’s Constitution does not provide for the erosion of the people’s judicial power, which is part of Sovereignty. Article 4 says the judicial power of the people shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognised, by the Constitution, or created and established by law. Thus there is no provision for hybrid courts.

During the setting up of the International Criminal Tribunal for the former Yugoslavia, Serbia protested saying it was a challenge to its national sovereignty. But the primacy of international law at international level prevailed.  The new government in Serbia, fearing that it would be excluded from the process of being granted European Union membership, eventually succumbed to pressure and recognised the tribunal.

Will Sri Lanka, like Serbia, succumb to pressure, fearing that otherwise the much-needed aid and investment from the Western world will not come? 

If the Government gives in, it will give the Rajapaksa-led opposition a new lifeline.  For the United National Party, which has been elected to office after 12 years in the opposition, it will be political hara-kiri. For the country, there will be turmoil writ large. Most people believe they owe the security forces -- the war heroes -- everything for the freedom they now enjoy, and any attempt to try them as war criminals is, therefore, unacceptable.  

Then what about justice for the victims? In a highly polarised nation, the victims’ cry for justice is also ethnicised.  The moderates say what is past is past, and the way forward is reconciliation and national unity. But the golden mean is between justice and protecting the honour of the war heroes.  This is the task facing the Government.

However, Wednesday’s developments in Geneva offer some hope for the Government to come out of the crisis.  The Government can use its diplomatic skills and Sri Lanka’s strategic location as a trump card to persuade the US to remove any mention of the hybrid court and focus on a domestic mechanism in the new resolution to be presented on September 24.  Sri Lanka can take heart from some positive remarks in the statement of the UN Human Rights Chief, especially his assertion that the inquiry would not be of a criminal justice kind but one of human rights.  The Government yesterday announced that it would set up its domestic mechanism soon and complete the process within 18 months. But the bigger challenge is restoring the international community’s confidence in Sri Lanka’s tainted judiciary that had remained highly politicised during the past 15 years or so.