RESPONSES TO LAKBIMA NEWS

1.       What is your opinion on the UN Panel Report? based on its Executive Summary which was leaked on the internet and the serialization of the report on the daily Island.

What we have seen makes it clear that the Panel has an agenda. This is essentially retribution, retribution against the current Sri Lankan government for having won its war against terror against the urgings of more powerful governments, and against us for having defeated those governments so resoundingly in Geneva, when a motion supportive of Sri Lanka was passed at a Special Session designed to impose a War Crimes Tribunal on us. This intention was indicated by Mr Miliband in the House of Commons.

This is apparent from the efforts to reopen the decision taken inGeneva. On the whole then it seems to me that the Panel has far exceeded its brief in that we were assured by the Secretary General that it was intended to advise him on Accountability issues, whereas it seems to have seen its role as that of cutting the Sri Lankan government down to size. We knew from the start that there was some uncertainty on the part of members of the Panel, given that they thought it essential to come toSri Lanka, whereas the Secretary General accepted that this was not essential. We also have to remember that many of those who pushed for such a panel were anxious to try us for War Crimes, and indeed one of the acolytes of Louise Arbour specifically asked the Canadian government to nominate him to the War Crimes tribunal. I have no evidence that the three members who were finally appointed had this view, but given their connections with what one might call the Human Rights establishment, another of them also being an Arbour associate, it is possible they were led astray.

2.       What do you think about the leaking of a report before it was formally made public? It is alleged that this was done by the government.

 I have no idea who leaked the report, but I believe many bodies critical of the government were keen that it be made public. Since it was clear the UN did intend the report to be public, I see no great harm in parts of it appearing beforehand, though I would like to see the whole.

3.       There are accusations of civilian casualties, shelling of hospitals etc, which i don't think will be that difficult to counter, but what about the accountability issues highlighted in the report?

The section on accountability consists of platitudes with a purpose that is apparent, when you look at the language used. Firstly, ‘Sri Lanka Army commanders and senior Government officials, as well as military and civilian LTTE leaders, would bear criminal liability for international crimes’. The latter are dead, so essentially this first point means calling our leaders criminals.

Secondly, ‘accountability necessarily includes the achievement of truth, justice and reparations for victims’. Who is liable for reparations, and from whom? Will there ever be recompense for the victims of terrorism? Does this mean finding out the truth about the culpability of international actors who armed the LTTE too? Not at all, the next sentence makes clear whom the Panel wants to punish – ‘Accountability also requires an official acknowledgment by the State of its role and responsibility in violating the rights of its citizens, when that has occurred’.

Finally, the Panel says ‘The Government has stated that it is seeking to balance reconciliation and accountability, with an emphasis on restorative justice. The assertion of a choice between restorative and retributive justice presents a false dichotomy. Both are required.’ What this means is that the old Mosaic doctrine of ‘an eye for an eye’, the concept of retribution that is now considered Neanderthal in seeking justice, is privileged as much as the reconciliation we need.

It is ironic that these recommendations come from citizens of countries that avoided retribution, sensibly I think, when nasty dictatorships were replaced by democratic regimes. Darusman, who as a comparatively civilized member of President Suharto’s Golkar Party became Attorney General in the transitional government, understood the importance of avoiding retribution when a new democratic government took over. InSouth Africa, similarly, Nelson Mandela had a Truth and Reconciliation Commission that avoided retribution. InAmericaof course, despite Barack Obama’s rhetoric about the reforms he would have to introduce on replacing George Bush, we have much of the mixture as before, with sanctimoniousness about killing others to stop terrorism being replaced by sanctimoniousness about other things, which could well involve killing too.

One must be impressed then at the sheer absurdity of insisting on retribution with regard to a democratically elected government that fulfilled the hopes of all its people by getting rid of terrorism, and calling this accountability.

4.       In an article to the Sunday Observer you have said that "We need to move swiftly on reforms that will strengthen the rights, the potentialities and the opportunities available of all our people. We need to respond swiftly and forcefully to all allegations, instead of letting these lie unanswered until they are then accepted as gospel. We need to develop a solid constructive foreign policy, and make sure that we pursue it with intelligence and consistency, with proper training for all personnel serving abroad as well as those interacting with the international community in Sri Lanka."

The government has not done any of these in the last two years and we have not shown visible interest on strengthening our internal mechanisms.  So doesn't a large chunk of responsibility for this lie within the government? 

We have been very slow, but that is a tendency of governments all over the world. We also had to go through an extended election process, which is a problem democracies have, though ours has been made worse by the different levels of elections we have, grafted on a system that allows them to be spaced out.

We also have a constitution that, though it is termed an Executive Presidential Constitution, ties down the President by creating alternative sources of power, whereas what you want is monitoring authority, not confusion.  But yes, I hope we move swiftly soon in a lot of areas, just as we have moved superbly on infrastructure development.

5.       The government has been dragging its feet on Human Rights Action Plan and the Bill of Rights, which have been promised years ago, now suddenly they are talking about these again, shouldn't we have done this without outside pressure?

These were not revived because of outside pressure, the lapse occurred because, after the dedicated Human Rights Ministry was abolished, there was confusion about where responsibility lay. Our staff moved to the Ministry of External Affairs, but its Secretary told me they were not equipped to handle internal Human Rights matters, and I can understand his position. Fortunately the Attorney General took up the matter last year, and we proceeded then with the last levels of consultation required. Unfortunately the Attorney General had a lot of travel in the past few months, given his other obligations including the hedging deals etc, so we were slower than I would have liked, but the draft was entrusted to an editor at the beginning of this month, and we have now handed over the final adjustments, so I expect the final draft by the end of April.

The Bill of Rights was delayed even though it was pledged in the President’s 2005 manifesto again because of confusion as to which Ministry it belonged in. I took over the job when I became Secretary for Human Rights in 2009, and had really to keep pushing all the dedicated but busy people who worked on the draft, and I managed to get this by the end of 2009. But then the elections intervened, and when the Ministry was abolished this, and the Action Plan, and also the Action Plan we had prepared for ex-combatants, fell by the wayside. I am happy that the Commissioner General of Rehabilitation has proceeded without the formality of our original plan on excellent work in that area, and with the Human Rights Action Plan now finalized, I hope we can also move soon on the Bill of Rights, as the President originally envisaged.

One very real problem is the manner in which Ministries are created, with no provision for continuity. I don’t think this can be solved except by constitutional amendment, which is why I have time and time again regretted the failure of the government – and the JVP which put it on probation then – to effect changes in 2001 that would have been universally accepted then.

6.       What can we really do about these allegations and what is the worse possible scenario?

We need to show that the allegations are misguided and misleading. I have already prepared answers with regard to some aspects, including the very confused claims with regard to hospitals. I believe if we are logical and clear and cite the records we have, we can show that our forces in general behaved better than any forces in the world that have dealt with terrorists. There have obviously been instances of collateral damage, and unfortunately sometimes in pointing out that there was no deliberate targeting of civilians, we seem to suggest that no civilians were killed, which is pounced upon as evidence of bad faith. So we need to be clear about what we are saying, which will help us to defend our excellent record in the field. We should also do better about aberrations in other areas, which all countries suffer from, but which unfairly in Sri Lanka are tied to our struggle against terror – whereas for instance the US State Department Report makes it clear that most concrete instances relate to other things.

And we need, while continuing with the seminal infrastructural development that the whole country is enjoying, to move more quickly on Human Resources development in the North and East, as well as for youngsters in deprived areas. We have to make it clear that all our citizens are full partners in the development process, and for this purpose we need too to improve recruitment ratios for state employment, in particular into the security services. What we have done in this regard already also needs to be better known.

All this also indicates that we need greater understanding of the way the world works, instead of obsequiousness to the rich and powerful at times, combined with excessive reactions when we, suddenly as it seems, realize that they are interested neither in us nor in morality, but only in their own interests. We do not need to get angry with them about that, such behavior is natural, and has been the stuff of international relations for years – but we need to know, and learn from them, the importance of packaging. This should not be difficult, given that in comparison with anyone else who has dealt with terrorism, we have a good story to tell – but we should tell it, not wait to be threatened by default.

7.       Finally, in 2009 you as the Secretary of the Ministry of Disaster Management and Human Rights sent a response to the UN Special Rapporteur on Extrajudicial Summary or Arbitrary Executions Phillip Alston, who cited alleged charges made by former Army Chief Sarath Fonsenka against the Defence Secretary Gothabaya Rajapaksa about the sequence of events in the last phase of the Eelam War IV (May 16 to 19), in that letter you argued that the retired General Fonseka had distanced himself from the comments attributed to him. This letter was withdrawn by the government. Do you think that, in hindsight, this was very misguided?

There was a case for withdrawing the letter, since close reading of the manner in which the distancing took place suggested ambiguities which needed to be sorted out. However we should have stressed the fact that the evidence Alston was adducing for his claims was no longer valid, and I could easily have done that too, while making clear Fonseka’s bad faith. Unfortunately our Representative inGenevawas new, and did not I think understand the relationships we had developed under the guidance of the previous Representative Dayan Jayatilleka who understood the dynamics that were prevailing very well. He knew too that Alston was nervous of me, and indeed said that he had been told I would take advantage of responses he sent – a bit like Garath Evans telling me he knew that I was a dangerous person to deal with. Unfortunately, with my letter being summarily withdrawn – and there being no proper follow up although that was promised – my usefulness in dealing with Alston was over, which is why indeed there are still references to his claims that the Channel 4 video was genuine.

That too should have been refuted in writing promptly, which would have been easy given the problems his own experts cite. I think the practice of prompt replies to Geneva has stopped after that incident, and I hope the new Foreign Secretary makes sure that we reply promptly as we did right through 2009 to all queries.