Tuesday, 6 May 2014

Impending int’l war crimes probe: Misreading New Delhi’s Geneva move



Permanent Representative of India to the UN office, Dilip Sinha

by Shamindra Ferdinando

Sri Lanka prepares to celebrate the fifth anniversary of her victory over three decades of LTTE terrorism on May 18, 2014 as the Office of the High Commissioner for Human Rights (OHCHR) readies to officially launch the much talked about investigation into alleged atrocities committed in Sri Lanka. This year’s armed forces parade will be held in Matara, with the participation of President Mahinda Rajapaksa, who is also Commander-in-Chief of the services. The OHCHR will announce the appointment of a high powered team of investigators, just before or shortly after the military celebrations in the South.

The Sri Lankan government publicly denounced the proposed UN mechanism, alleging it has no mandate to investigate the conflict here. The government appears to be confident that it will have India’s backing to face the UN challenge. India abstained from voting on March 27, 2014 in the US-sponsored resolution titled "promoting reconciliation, accountability and human rights in Sri Lanka" in the UNHRC, which authorised the body to set up an independent international inquiry in Sri Lanka to probe accountability issues.

"The resolution is inconsistent and impractical in asking Sri Lanka and UNHRC to conduct investigations simultaneously," said, Dilip Sinha, Permanent Representative of India to the UN office.

Sinha noted that unlike the resolutions in 2009, 2012 and 2013, this resolution asks the OHCHR to "investigate, assess and monitor" the human rights situation in Sri Lanka which was an "intrusive" approach that undermines national sovereignty.

"It has been India’s firm belief that adopting an intrusive approach that undermines national sovereignty and institutions is counterproductive. Any significant departure from the core principle of constructive international dialogue and cooperation has the potential to undermine efforts of the Human Rights Council for promoting universal respect for the protection of human rights and fundamental freedoms," he said.

Moreover, any external investigative mechanism with an open-ended mandate to monitor national processes for protection of human rights in a country, was not reflective of the constructive approach of dialogue and cooperation envisaged by earlier UN General Assembly resolutions, he added.

"India has always been of the view that the end of the conflict in Sri Lanka provided a unique opportunity to pursue a lasting political settlement, acceptable to all communities in Sri Lanka, including the Tamils," the explanation given of India’s vote said.

"India believes that this council’s efforts should contribute to a state’s own efforts in the promotion and protection of human rights. We are strongly supportive of Sri Lanka’s continued engagement with the OHCHR.

"We encourage the High Commissioner to continue to provide technical assistance in accordance with the relevant HRC resolutions. We are also supportive of a close engagement of UN Special Procedures with the Government of Sri Lanka," it said.

India’s decision to skip the vote on the US-UK led resolution moved at the 25th session of the Geneva-based United Nations Human Rights Council (UNHRC) was meant to protect her interests. Had India felt so strongly against the resolution, it should have voted against the move. Instead, India played it safe.

The Indian move was clearly aimed at preventing further deterioration of its relations with the Sri Lankan government. Having voted for anti-Sri Lanka resolutions moved by the US in 2012 and 2013, India probably felt that another ‘Yes’ vote would cause irreparable damage to Indo-Lanka relations. In spite of both the US and UK expressing serious concern over the unexpected move, India abstained. Even if India voted against the resolution, it wouldn’t have made a difference on the ground. The resolution received 22 ‘Yes’ votes, whereas 12 countries voted ‘No’ and 12 abstained. The US too, being a member of the UNHRC voted for its own resolution. The adoption of the third US resolution at the March session was a foregone conclusion, therefore the Indian move didn’t undermine the overall objectives of Western powers pushing for a regime change in Sri Lanka.

India couldn’t have ignored the growing Chinese influence in Sri Lanka. A third consecutive vote would have further strengthened the Chinese position here. Perhaps the Indian strategy would have appealed to the US due to President Obama’s dependence on India to counter the Chinese challenge in the region. Closer Indo-Lanka relationship is advantageous to the US. Therefore, Sri Lanka needs to examine the geopolitical interests of the world’s solitary superpower when dealing with post-war issues.

Unfortunately, Sri Lanka appears to have failed to realize the Indian strategy. Although the Indian backed five-party Tamil National Alliance (TNA) and the UK-based Global Tamil Front (GTF) expressed disappointment at the Indian approach, they basically refrained from criticizing Premier Manmohan Singh’s government.

TNA leader R. Sampanthan told The Hindu that the Indian move caused surprise and a measure of disappointment. quoted the Trincomalee District MP R. Sampanthan as having said: "Nevertheless India must have good reasons for its decisions and we look forward to discussing that with India in due course," he told The Hindu on Thursday.

However the TNA, he said, was very satisfied and happy that the resolution was passed. If this resolution was properly implemented, it would pave way for genuine reconciliation and permanent peace in Sri Lanka, he added.

UK based GTF spokesman, Suren Surendiran told The Island that Tamils in Sri Lanka and the world over were very disappointed and hurt by the Indian abstention. Responding to a query by The Island, Surendiran said: "India’s action is a devastating let down! Considering that 75 million Tamils live in Tamil Nadu alone, their feelings have been ignored completely by the decision makers. However, GTF is moved and elated by the continuous support by Tamils in Tamil Nadu, the civil society all-over India and the media in India in general." (GTF hails US resolution, echoes TNA’s call for immediate international probe-The Island March 29, 2014). Since then, the GTF refrained from commenting on the issue. Perhaps, Surendiran wouldn’t have made that statement if The Island didn’t raise it.

Political parties based in Tamil Nadu too did not make a big issue over the Indian action. Major political parties acted as if they had reached an understanding on the issue, though it could have been exploited particularly in Tamil Nadu during ongoing Indian parliamentary polls.

The Sri Lankan government seems to be blind to what is happening on the ground.

The bottom line is that the Geneva resolution has paved the way for an international probe. In spite of missing the vote, India, as a member of the UNHRC, will fully cooperate with the UN body. The investigation will focus on events during the period from February 2002 to May 2009.

All those wanting to haul Sri Lanka up before an international war crimes tribunal privately agree that such an investigation shouldn’t be at the expense of India. Those who threatened to set ablaze cinemas in the UK to stop screening of Shoojit Sircar’s Madras Cafe early this year claiming the movie depicted the LTTE as responsible for the assassination of one-time Indian Prime Minister Rajiv Gandhi, remained mum over the Indian move in Geneva. Although cleared to screen in both Hindi and Tamil, theaters across Southern India, the United Kingdom and Canada suspended screening of the controversial political thriller starring John Abraham, because of protests.

India has achieved its objectives, though some Sri Lankan officials portrayed the Geneva vote as a victory for Sri Lanka. They went to the extent of counting the abstentions with the ‘No’ vote to declare 24 countries opposed the resolution. What they didn’t admit was that India’s position in Geneva was irrelevant as far as the UN investigation is concerned. The resolution ensured that India’s interests wouldn’t be jeopardized though it didn’t vote for it. Firstly, the resolution accommodated a critically important paragraph relating to the implementation of the 13th Amendment in Sri Lanka’s Constitution. Secondly, it effectively restricted the proposed investigation to the period between February 2002 to May 2009. India wouldn’t want anyone raising the issue of its intervention in Sri Lanka in the 80s, leading to three decades of bloodshed.

The following is the relevant section resolution bearing No. 10 of the 12 point resolution

10. Takes note of, the recommendations and conclusions of the High Commissioner regarding ongoing human rights violations and the need for an international inquiry mechanism in the absence of a credible national process with tangible results, and requests the Office of the High Commissioner:

(a) To monitor the human rights situation in Sri Lanka and to continue to assess progress on relevant national processes;

(b) To undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka during the period covered by the Lessons Learnt and Reconciliation Commission, and to establish the facts and circumstances of such alleged violations and of the crimes perpetrated with a view to avoiding impunity and ensuring accountability, with assistance from relevant experts and special procedures mandate holders;

(c) To present an oral update to the Human Rights Council at its twenty-seventh session, and a comprehensive report followed by a discussion on the implementation of the present resolution at its twenty-eighth session;

11. Encourages the Office of the High Commissioner and relevant special procedures mandate holders to provide, in consultation with and with the concurrence of the Government of Sri Lanka, advice and technical assistance on implementing the above mentioned steps;

12. Calls upon the Government of Sri Lanka to cooperate with the Office of the High Commissioner in the implementation of the present resolution.

The government will find itself in an extremely difficult and embarrassing situation in the coming months due to the mistaken belief that India can save it. It should also keep in mind that a change of government in India too will not in anyway affect the UN investigation. Even if the government reached some sort of understanding on the 13th Amendment with India, it will not have an impact on the UN action as well as the US-UK project. They’ll push for a full scale war crimes probe, regardless of the ongoing South African initiative. Whatever the experts say, India’s objectives in Sri Lanka cannot be compared with that of the US and UK as well as the EU.

No less a person than one-time Indian Foreign Secretary J.N. Dixit, in his memoirs, admitted that the then Indian Premier Indira Gandhi intervened in Sri Lanka to safeguard its own interests.

Dixit, in his memoirs, Makers of India’s Foreign Policy, launched in 2004, says that he preferred to call India’s interference in Sri Lanka during 1980-1990 period as ‘Indian involvement.’

Dixit asserted that the decision to give active support to Sri Lankan Tamil militants could be considered one of the two major foreign policy blunders made by Gandhi. But he strongly defended the Prime Minister’s action, while asserting Gandhi couldn’t have afforded the emergence of Tamil separatism in India by refusing to support the aspirations of Sri Lankan Tamils [Chapter 6:An Indocentric Practitioner of Realpolitik-Makers of India’s Foreign Policy].

Dixit failed to explain how the Prime Minister hoped to achieve her twin objectives by recruiting, training, arming and deploying thousands of Sri Lankan Tamil youth. India also helped Sri Lankan terrorists establish contact with international terrorist groups.

Indian action caused irrevocable damage to Indo-Lanka relations. The Maldives, too, suffered due to Indian intervention in Sri Lanka. Dixit totally ignored the Maldivian factor, though India was responsible for the coup attempt in the Maldives in Nov. 1988.