Playing ‘Good Cop, Bad Cop’ On War Crime Probe – But To What End?

Playing ‘Good Cop, Bad Cop’ On War Crime Probe – But To What End?

  1. Sathiya Moorthy The Sunday LeaderColombo15 January 2017
  • President Sirisena is very clear on this matter and has more than once said there will be no foreign judges in the local judicial mechanism
  • Sri Lanka’s Constitution or the Criminal Procedure Code do not provide for the establishment of a judicial mechanism with foreign judges
  • Manouri Muttetuwegama, veteran attorney-at-law, endorsed the (UNHRC) demand for inducting foreign judges for war-crimes probe

The way the two major Government camps led by SLFP President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe are behaving, it looks as if there is no communication at all between the nation’s top two leaders. For, both camps, and more especially their respective leaders seem to be relying ever more on the media for communicating their respective and oftentimes differing ideas on issues, and not just to the nation or their allies and political Opposition alike. It looks as if that’s all the communication that seems to exist between the two, as parties, personalities and the nation’s leaders.

The latest but not necessarily the last one of the kind relates to the Consultative Task Force Committee (TFC) report on ‘war crimes probe’. Obviously aware of the seriousness of the issue(s) involved, especially ahead of the March session of the UNHRC in Geneva, Sirisena conferred with his SLFP faction colleagues in the President’s House and reiterated his known position, rejecting the recommendation for the appointment of ‘foreign judges’.

Addressing a ‘hurriedly called’ news conference, State Minister of Finance Lakshman Yapa Abeywardene recalled how “President Sirisena was very clear on this matter and has more than once said there will be no foreign judges in the local judicial mechanism and it will not be a hybrid court as suggested by certain groups. He also reiterated that “only logistical and IT assistance would be obtained (from overseas) to expedite the judicial process, when the judicial mechanism is set up to probe the alleged crimes”.

The issues are not just political pertaining to the Sirisena camp apprehensions about the impending moves/initiatives of the rival SLFP faction identified with former President Mahinda Rajapaksa. “President Sirisena and the Government have full confidence in our judiciary, legal process and judges. We have extremely eminent and experienced judges and our judges have served in various countries and global organisations that have given much credit to the country,” Minister Yapa added, indicating their concerns on that score. 

No provision

It’s not without reason. Any acceptance of foreign judges for war-crimes probe would be a monumental Government acknowledgement that the Sri Lankan judicial system is not fair to the victim, and is not non-partisan. A sovereign and democratic nation cannot accept as much and expect others to continue respecting it as one. On the technical and more immediate side, any decision of the kind might be challenged locally in the Supreme Court, and the verdict would be the nation’s final-say in the matter, whatever the position taken by the Government.

Minister Yapa himself alluded to it. Though he did tell newsmen that the Government hoped to “submit a progress report to the UNHRC in March and explain the measures taken …to promote reconciliation, rule of law, inter-communal harmony and strengthen democratic institutions and the concept of good governance”, the immediate issue does not relate to any or all of them. Instead, as the Minister explained, “Sri Lanka’s Constitution or the Criminal Procedure Code do not provide for the establishment of a judicial mechanism with foreign judges to adjudicate alleged war crimes.” What more, “we have faith in our Judiciary”, he said further, reiterating especially the Sirisena SLFP faction’s known stand from within the Government.

As such, the Minister explained, the “issue of establishing a so-called hybrid court (with a mixture of local and foreign judges) does not arise”. Instead, the Government’s “intention is to establish a credible domestic mechanism comprising of our own judges, acceptable to the local and global community.” But then, the kind of court, the mix of judges and/or the processes of investigation and adjudication are only a part. Even more sensitive issues are involved.

Contradictions galore

It’s here that the question of probing ‘war-heroes’ arise. “The Government under no circumstances will target war heroes, field commanders of the three armed forces or the political leadership for war crime charges or haul them before a court or tribunal,” media reports further quoted Minister Yapa as saying, after the meeting at the President’s House. “But we have to deal with those if there are any, who have violated the International Humanitarian Law on an individual level,” he added.

It’s here that contradictions galore in the Government’s (divided) opinion, which some say may also end up as being ‘divisive’, if extended or expanded beyond a point. First and foremost is an ‘acceptable definition’ of ‘war heroes’? Do they involve field commanders and soldiers, or higher-ups (alone), and if either, whether the political leadership of the time would be exempt – from ‘war crimes probe’ or ‘war heroes’, or what? By extension, does Field Marshal Sarath Fonseka, who was the Army commander during the conclusive ‘Eelam War IV’ and his fellow commanders of the other two Services be exempt – and from which?

It does not stop there, either. Would then President Rajapaksa, or Defence Secretary, Gotabaya Rajapaksa, be exempt from the ‘probe’ or what? That way, what could and would form the basis of investigations against ‘individuals’? Rather, what would constitute a prima facie case against an individual or a group of armed forces personnel, or political decision-makers, for being investigated and brought up for trial? For, as Acting Defence Minister on five different occasions, including the last and decisive phase, President Sirisena could be one of them, if the logic of and for the probe were to be extended beyond a point.

Illogical and all

The 11-member Consultation Task Force on Reconciliation Mechanisms (CTFRM), as it was christened at birth, could at best be an extension or another edition of the Lessons Learnt and Reconciliation Commission (LLRC), appointed by the Rajapaksa Government, though again under international pressure than as per internal requirements, if any. That way, there is not much more that the new panel could say, or has said, than the LLRC did in its time.

Of course, there is a difference. The new panel, headed by Ms Manouri Muttetuwegama, veteran attorney-at-law, endorsed the (UNHRC) demand for inducting foreign judges for war-crimes probe (if and when held?).  The committee, of which academic and rights activist,  Paikiasothy Saravanamuttu, was/is the Secretary, also wanted a new law in tune with international standards, to replace the much-maligned Prevention of Terrorism Act (PTA).

Minister Yapa seemingly pooh-poohed media suggestions that the Task Force recommendations were mostly in tune with the UNHRC resolution that Sri Lanka had co-sponsored after the Maithiri-Ranil duo came to power in January 2015.  Post-polls, there was no threat of ‘sanctions’ against the nation, he said adding, nor was there any need for ‘hybrid courts’. It’s here the contradictions within the Government are even more striking, making the Task Force recommendations, illogical and impractical, going beyond recommending ‘intrusive’ mechanisms.

True, by mouthing phraseology dear to the heart of the international community in his first UN General Assembly Address in 2015, President Sirisena did indicate his seeming readiness to accept ‘independent, international investigations’ into war-crimes and accountability issues. Once back home, he began going back on the impression he had created at the UN. Without mincing words (any more), he clearly said ‘No’ to ‘foreign judges’ – and has not budged an inch, since.

There is none who can deny that Sirisena is the President of Sri Lanka, and he is still the Head of State, Head of Government and Head of the Cabinet, all roles rolled into one. He also continues with the traditional position as the Supreme Commander of the Sri Lankan armed forces. The much-touted 19-A that the duo brought about to the Constitution has not altered any of these powers of the President under the Constitution, a position that does and should command as much respect within the nation and outside.

Going thru motions

Such being the case, and when the position of the President in terms of ‘foreign judges’ is well known by then, why did the Government have go through motions of a Task Force and coming with recommendations that are unacceptable to the Head of State, possibly as much constitutionally (as has been argued) as may be personally and/or politically? And yet, PM Ranil and his UNP are yet to come out with their own position on the Task Force recommendations. It’s this that makes the Government’s position untenable, both inside and outside the country – as there does not seem to be any decision in the first place, for them to ‘sell’ at and to the UNHRC in March – other than to buy more time than already.

It’s not necessary that the President and the Prime Minister and their respective political parties have to see eye-to-eye on every issue and at every time. It’s more so in a cohabitation arrangement of the Sri Lankan kind, it is unnatural to begin with, the two having represented ideologically divergent positions on every issue from the day the SLFP broke away from the UNP in 1951. In electoral terms, it became competitive politics, representing class issues in a world that shunned ‘class’ politics with the collapse Soviet communism, substituting it with more divergent and at times divisive factors.

The ‘ethnic issue’ has been Sri Lanka’s diversionary issue, but the transition has been taking time, even after the end of the avoidable ethnic war, and the two ‘JVP insurgencies’ earlier. As a fallout of the ‘ethnic issue’ in more ways than one, the ‘war crimes’ probe is as much a competitive issue for the ‘Big Two’ of Sinhala-Buddhist polity as the sensitivities attaching to hauling up the armed forces for what the nation perceived as the supreme call of duty and patriotism – but is doubting itself since.

Credible evidence

The argument holds in the case of the IPKF, too, as the Task Force recommendations now wants the Indian peace-keepers too probed along with other ‘perpetrators’ of war-crimes. If it happened, it all happened close to two decades ago. If it were so, at least the ‘second JVP insurgency’ (1987-89) could be described as a ‘southern Sinhala reaction’, violent as it was, to the IPKF induction.

Should the Task Force then have considered the second JVP insurgency as a part of the ‘war-crime probe’? There reportedly was even more ‘credible evidence’ about the armed forces ‘butchering’ Sinhala youth, men and women in the reproductive age-group’ in their thousands than may be even in Vellimullivaikkal. Either both happened, or did not happen. The argument that the Task Force was not tasked with studying JVP-II insurgency would not hold water, if one were to extend that far back and bring in the IPKF into the ring.

Sitting across…

The immediate question is none of it and all of it. Going beyond their occasional media jibes at each other on varied issues as Hambantota land for China, police probe of ‘war heroes’ on corruption charges, the ‘war crimes’ probe has the visible external angle to it. The Government leadership cannot afford to play cat-and-mouse with the international community, which it had allowed to be a stake-holder, unlike under the Rajapaksa regime.

Rather, between them Sirisena and Wickremesinghe are giving the impression that they are playing the ‘bad-cop-good-cop’ game with the international community, and also the Tamil socio-political leadership(s) nearer home. It has consequences, it comes with credibility tests that the Rajapaksa regime failed to pass, after handling much of it himself as President and yet constantly shifting the goal-post and also the time and space for finding a political solution.

Between the two Sirisena seems to be looking closer at his constituency, or the SLFP leadership, than the past commitments made by his campaign to the Tamils and his post-poll Government, to the international community. Given their ‘broader perspective’ of the world and self-satisfying attitude that they know the world better than the latter knows Sri Lanka, the Ranil-led UNP seems hopeful of playing it out against Sirisena and the SLFP factions on the one hand, and the global community on the other – and win them all in good time.

TINA factor

It’s the mistake the Rajapaksas committed in their time. It owes to what in some political contexts is called the ‘TINA factor’. It’s the belief that for the rest of them (meaning the international community here) ‘There Is No Alternative’, or TINA but to support them. Rajapaksa had concluded thus in his own way – but failed to notice the groundswell against him nearer home, and on issues unconnected with war victory and war-crimes probe.

This Government and its leaderships are also now sitting on a tinder-box, but refusing to understand or acknowledge the same. They are already enmeshed in scores of political and economic problems of their own making nearer home. After a time, the international community, and their war-crimes probe demands and expectations would have to wait, the periodicity of the six-month UNHRC review notwithstanding. The international community has had the nasty habit of waiting, and waiting it out, too!

If they get convinced that there is nothing much to really choose between one and other Sinhala leader on issues of war-crime probe and accountability issue, they would happily wait out, too! Rather, they would not have much choice nearer home to Sri Lanka when the domestic mood has changed, but the rulers’ methods alone remain unchanged – right or wrong, or for right reasons or wrong!

(The writer is Director, Chennai Chapter of the Observer Research Foundation, the multi-disciplinary Indian public-policy think-tank, headquartered in New Delhi. email:

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