UN "Expert" report is an illegal one based on fudged assumptions
by Dr.Susantha Goonatilake
The UN expert team report on alleged "war crimes" castigates Sri Lanka, lightly raps the knuckles of the LTTE, ignores vital history, intrudes into contemporary issues outside its mandate, castigates the very UN that appointed it, off-handishly interprets Sri Lankan social reality which even professional social scientists would shun from, uses terminology straight from NGOs like "triumphalism" and "ethno nationalism", and praises Sri Lankan "civil society" (read foreign funded NGOs and not real civil society like political parties, trade unions and professional organisations).
Perhaps a sign of guilt at providing this misinformation, NGOs themselves have been spewing out statements during the last few days that they are being unfairly targeted for attack in the newspapers. Curious. And not so curious. We should begin with the war's context (and also put into context the Time magazine poll on Mahinda Rajapaksa which was announced almost on the day of the UN expert report). Let us begin with ground facts on war.
Wars are messy and bloody, especially long-lasting wars for national sovereignty. Our concluded war is perhaps the longest war in the world of the 20th and 21st centuries began when 20,000 detonators for 20,000 explosions were found in 1973 smuggled into Jaffna from South India. It was fuelled ideologically by pan-Tamil chauvinism emerging from around the 1920s in South India. It predated the tragic riots in 1978 and 1983. It was dramatically helped by the Indian proxy invasion beginning in the early 1980s when all the separatist groups were trained, armed and sent to Sri Lanka as a foreign policy act of the Indians.
Contrary to calls for transparency, democracy and accountability implicit in the UN expert report we have had over the decades attempts, some successful some not, to subvert the will of the country's people by foreign powers and their NGO proxies. First was the so-called Indian Accord imposed with Indian gunboats which forced Sri Lanka to change its Constitution. This was cheered heartily by NGOs including the current one which is bleating publicly. It then said gleefully that Indian forces would not leave unless Sri Lanka bends to Indian views. Perhaps the worst leader of Sri Lanka as far as our sovereignty was concerned; Chandrika Kumaratunga was hoisted on us over her nationalist mother through machinations of NGOs.
Chandrika wanted to hand over the North and East for 10 years to the LTTE. In her time, the traitorous CFA was signed and there were also attempts at the ISGA and P-Toms. All of this was meant to strengthen the LTTE and whittle away our sovereignty. All were cheered by NGOs; the currently bleating one even wanting the constitution changed after P-TOMS was suspended by the courts. The NGOs acting as paid proxies for foreign powers also questioned the need for sovereignty and had called for “shared sovereignty” and two near-states. Not surprisingly, almost all leaders of the NGO’s were from sections of society that lost colonial privileges after our Independence. Amidst all these machinations against the country, we finally had the guts to take the LTTE on.
The last few weeks were very bloody as Prabhakaran dragged "his people" under duress to an ever shrinking part of his invented homeland and co-opted many of them as unwilling fighters. He had already wanted one member of each family, but now in the dying days of the LTTE he wanted almost every family member to serve in his army. Such an act of mass herding had not been done by his predecessors Hitler or Mussolini as they faced defeat in World War II. Hitler committed suicide with family and friends in his bunker not surrounded by German masses as a human shield. Our Hitler who had distributed suicide pills forgot to take his. Finally surrounded by pincer movements of the Sri Lankan Army, Prabhakaran forced the innocents into a sliver of land preventing them from leaving. The last few days indeed would have been bloody, very bloody.
It would not however have been bloodier than the West's wars for sovereignty like the American Civil War, World War I and World War II. Many of these had policies of "taking no prisoners" and consequent mass summary executions. Nandikadal had no parallel to the mass murder in Hiroshima, Nagasaki, and mass bombing of German cities like Dresden. And hidden from the western World War II triumphalist propaganda were the large-scale massacres and rapes of Germans after World War II.
The West’s colonial wars were all genocidal including that of the Portuguese on Sri Lanka. Post World War II western wars of intervention such as in Vietnam (millions killed) and Iraq (the respected journal Lancet estimating nearly 700,000 killed) and Afghanistan are a continuing saga. And as Sri Lanka with an over 30-year-old war, with memories of nearly 500 years of Western colonialism and 2500 years of historical memory struggled to regain sovereignty, many indeed would have died in the last few confused weeks in that sliver of Nandikadal land.
Towards the end of the war on May 13 2009, the UN Security Council in a Press Statement, had condemned the LTTE for “its acts of terrorism over many years, and for its continued use of civilians as human shields”. It reaffirmed “the legitimate right of the Government of Sri Lanka to combat terrorism” and demanded that the LTTE “lay down its arms and allow tens of thousands of civilians still in the conflict zone to leave”.
The UN Human Rights Council (UNHRC) on May 27 declared “respect for the sovereignty, territorial integrity and independence of Sri Lanka and its sovereign rights to protect its citizens and to combat terrorism”. It denounced “all attacks the LTTE launched on the civilian population and the practice of using civilians as human shields”. It greeted positively “the conclusion of hostilities and the liberation by the GOSL of tens of thousands of its citizens that were kept by the LTTE against their will as hostages, as well as the efforts by the Government to ensure the safety and security of all Sri Lankans and bring permanent peace to the country”. It wanted the government “to continue to persevere in its efforts towards the disarmament, demobilization and rehabilitation of former child soldiers recruited by [the LTTE] in cooperation with relevant United Nations organizations”. (These facts pointed out by veteran diplomat Nihal Rodrigo).
The same crowd that brought in the EU restrictions on our garment exports was now trying hard to reverse the above UN words said at the heat of the battle. In fact, the current report was criticizing these earlier actions of the UN itself. The report's narrative mischievously put the cart before the horse. It describes (falsely) government forces' actions first - which were only a reaction to LTTE attacks - while mentioning LTTE actions only as an afterthought. It was denouncing the feeling in the country of triumph over adversity.
We in the older generation must indeed be triumphalist that the younger generation can now enjoy the peace that we had when we were young. We must indeed be triumphalist that the LTTE was defeated. Sri Lanka triumphalism is nowhere near Western triumphalism after World War II. NGO doublespeak was easy to spot in the report. Where did the country go wrong after the war's end and what was the remedy that we missed?
On close examination, the UN "Expert" Report is seen as an illegal one based on fudged assumptions, reminiscent of similar false concepts such as the "Traditional Homelands of the Tamils". It also has, in the spirit of missionaries of earlier colonialism, implicit timelines and false data on our history similar to those put out by foreign funded NGOs.
UN circles have maintained that the expert panel had legitimacy and was at the request of a joint statement on May 23, 2009 by Ban Ki -moon and Mahinda Rajapaksa. D.B.S. Jeyaraj, after his "in depth perusal" of the Joint Statement finds no such joint pledge. So at the beginning itself, the mandate of the Panel was non-existent, rigged to please interested parties.
While the tone of the report is one of castigation of the government, the report itself is revealing of ground LTTE facts which the panel does not properly place with adequate emphasis.
Tucked away in the tail end, the Report mentions “Despite grave danger in the conflict zone, the L.T.T.E. refused civilians permission to leave, using them as hostages, at times, even using their presence as a strategic human buffer between themselves and the advancing Sri Lanka Army,” and adds “from February 2009 onwards, the L.T.T.E. started point-blank shooting of civilians who attempted to escape the conflict zone, significantly adding to the death toll in the final stages of the war.”
This is echoed by Gordon Weiss, the former UN spokesperson who left Sri Lanka under a cloud in an interview on the Report with Radio Australia. Weiss says that the “The Tamil Tigers held essentially hundreds-of-thousands of people hostage. As the siege intensified, they refused to let people go and as people tried to escape, they shot them. They were also guilty of the mass conscription of people and certainly in my book … the Tamil Tigers are responsible for the deaths of thousands of teenagers, who were forcibly conscripted."
The question is if Tamils were held under hostage, what would a legitimate government do at the tail end of a 37-year war? Indeed, what are the western guidelines in the taking of only a few hostages by terrorists, not the hundreds of thousands of the LTTE? Many popular films have been produced on such freeing of a few hostages using lethal force in different theatres from the US heartland, to the Iranian Embassy in London, to Somali pirates in the sea to Afghanistan. When the hostages are not just a few, but hundreds of thousands and had been kept without democratic rights and freedoms under a Hitler type regime now on its last legs, the humanitarian route is obvious. Use all means for rescue to prevent future greater suffering.
The Report claims that at the tail end of the war, the government did not provide food and humanitarian aid. Sri Lankan governments (of all shades) were perhaps the only state in the world that although its writ in other matters was denied by the LTTE kept the Tamil population under enemy control continuously fed, educated and provided with free medical care. And many of these humanitarian efforts ended up with the LTTE. Sri Lanka state humanitarianism went to feed the enemy. Even during the last stages of the war, the World Food Programme and UN agencies were delivering provisions. Yet, the local UN officialdom was hardly neutral in the war, as was seen in the large quantities of food items and medicines with the UN emblem clearly marked found after the war in LTTE stores and war bunkers.
The present UN "experts" Panel Report denies these already well documented UN efforts. It mentions that "during the final stages of the war, the United Nations political organs and bodies failed to take action that might have protected civilians". It also now wants to reconsider UN decisions taken when the facts were current and well-known. The hidden implication possibly is that the UN should have intervened to stop fighting to allow Prabhakaran safe passage, a position that hardly would have been allowed to Osama bin Laden and his crew if they were surrounded.
A Report presumably looking at the last days of the war has some telling recommendations beyond its mandate which reveal its hidden hands. It wants "the root causes of the long-running ethno-nationalist conflict" and removal of "on-going exclusionary policies, which are particularly deleterious as political, social and economic exclusion based on ethnicity, perceived or real, have been at the heart of the conflict" and "the full and inclusive citizenship of all its people, including Tamils as the foundation for the country’s future."
Comparing Sri Lanka with India, the US, and many Western countries, I had shown in an article in the OPA Journal as well as in my submissions to the LLRC that in formal legal terms, there are no such exclusionary policies. In fact, Sri Lanka has better legal provisions for minorities than Tamil Nadu. (But legal provision and ground reality can of course be very different.)
The Panel also wants "a process, with strong civil society participation [read foreign funded NGOs], to examine in a critical manner: the root causes of the conflict, including ethno-nationalist extremism on both sides; the conduct of the war and patterns of violations; and the corresponding institutional responsibilities." This is in the spirit of NGO hogwash and half truths which I had detailed in my book on NGOs. With hundreds of millions of rupees of foreign money, the local NGOs undertook careful processes of brain washing (I use the term literally) the local population. However, this was to no avail as the locals took the money but welcomed the end of the war.
These recommendations of the Panel immediately recall those of the Berghof Foundation in its carefully laid out plan of governance of the country through NGOs, downsizing the military, and giving NGOs a veto power on the military. Berghof was tightly linked to all other NGOs, and during the war its head was deported as a security risk.
Again going outside its mandate, the Report has some recommendations on removal of Emergency Regulations, the validity of the justice system, independence of the judiciary and concentration of power in the Presidency. Emergency regulations have been in force for several decades and indeed should be removed when it is no longer needed for national security. The justice system should be improved and power should be spread throughout the country. Democracy in Sri Lanka as in the US is a work in progress. I can make several recommendations for improving US democracy (as I had done in international journals). But, these are for the local population to undertake, for the local national level political parties - the UNP, the JVP and of course the UPFA. We citizens while resisting foreign interference and attacks on sovereignty must and should make our country better. That is our duty, not that of foreign colonial missionaries.