On the margins of the UN General Assembly in New York, India's Prime Minister Narendra Modi informed Sri Lankan President Maithripala Sirisena on Friday last week, that India decided to vote in favour of a UN resolution that in effect allows Colombo to determine the parameters of a human rights probe inquiring war crimes committed during the country's three-decade-long civil war that ended in 2009.
India’s external affairs ministry spokesperson Vikas Swarup said: "We stand for justice. At the same time, we are respectful of Sri Lanka's sovereignty." And: "To the extent the Sri Lankan government is comfortable with the formulation which marries the two, we will be comfortable with that".
The latter refers to Sri Lanka's support for a US-authored resolution at the UN Human Rights Council. This draft resolution, which is likely to pass unanimously, refers to the importance of having foreign experts involved in a potential investigation, but does not make the condition mandatory. Sri Lanka has resisted a foreign inquiry, because it would constitute an infringement of sovereignty. The last time, mixed courts of foreign as well as local judges were established on the island, was during the colonial period.
The problem of involvement of international judges undermining national souvereignty is named a “hybrid” in Sri Lanka. The task to reconcile both ambitions, to include international investigators in order to gain the trust of the Tamil minority and, on the other hand, to avoid international involvement in order to maintain Sri Lanka’s ground not to be a second-class nation, now created a “hybrid” text of the draft resolution. The operative paragraph 6 affirms “… the importance of participation in a Sri Lankan judicial mechanism, including the Special Counsel’s office, of Commonwealth and other foreign judges, defense lawyers, and authorized prosecutors and investigators". As already mentioned: Importance does not mean necessity. But the crux of the matter remains unchanged, the question seems unsolved and maybe is indeed insoluble: Will international judges be involved, yes or no? Excluding them will undermine the trust of the Tamil minority. Including them will risk firestorms of parts of the Sinhalese majority.
However, a first important step is done, full cooperation between Sri Lanka and India and the USA and, what’s even more important than that, consensus between the Sri Lankan government and the Tamil opposition. The latter was achieved by involving Tamil minority leaders in negotiations with the USA in order to work out the text of the new resolution.
So maybe the most significant part of the deal is this: The Tamil National Alliance (TNA), the representation of Sri Lanka's minority Tamils and the official opposition in the new parliament, though advocating the involvement of international judges, now says the draft resolution initiated by the USA was the "product of a difficult consensus". In a statement, the TNA explained their backing for this draft resolution co-sponsored by the Sri Lankan government: "We are acutely aware that some of the language used in the interests of a consensus will not satisfy all victims of the conflict whom we represent and who have reposed their trust in the TNA." But the advantages of a national reconciliation process seem to outweigh these concerns: "However, we are of the view that the draft provides a constructive starting point for what will inevitably be a long road to reconciliation".
Creating a hybrid text - “importance” of international involvement - is just the very normal way diplomacy is done. The advantage of this kind of ambiguous diplomatic language is finding a common ground as a first step of building up trust. The risk remains: new controversies interpreting the “importance” when it comes to actually establish war crime probes - with or without international judges.
Let’s hope, there will be ways allowing Sri Lanka to draw on foreign funding and expertise without being degraded to a second-class member of the international community.
In order to understand that criticism of international involvement in a nation’s judicial system is not simply a manifestion of nationalistic narrow views, it should be kept in mind, that judges from Sri Lanka or from other fully democratic developing countries have until now never been invited to investigate the conduct of forces of Western states, though their alleged war crimes were committed invading foreign countries, what Sri Lanka's troops never did. On the other hand, there is never any similar pressure on powerful nations like China or Russia to allow international judges to investigate in Tibet or Chechenia respectively. So, in order to understand the sensitivities of a small nation that had been occupied for hundreds of years by western invaders until less than 70 years ago, read the comment of Dayan Jayatilleka, who once was Sri Lanka’s Permanent Representative to the UN in Geneva and a Vice-President of the UN Human Rights Council and also served as appointed Chairman of the Governing body of the International Labour Organization (ILO):
“The West that atom-bombed Hiroshima and Nagasaki, dumped Agent Orange on Vietnam and still refuses to pay compensation for deformed babies, used depleted uranium in the Iraq wars, wants Sri Lanka which did nothing remotely like this, to set up a criminal justice mechanism with foreign judges and lawyers and to sack any member of the armed forces found to be credibly suspect by an independent administrative process.
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