Saturday, 17 May 2014

The judgment of Navanethem Pillay on Post-War Sri Lanka

Abstract: This writings make well-informed few remarks about the Pillay’s judgment regarding post-war Sri Lanka.

Why is Pillay’s judgment so shaky in the case of Sri Lanka? Most of insiders and  acute observes are saying so.

Pillay, the High Commissioner of the Office of Human Rights, is a fighter in her spirit. Her track record shows that she had never let her deprived past affect her professional carrier. She has an impressive carrier history as a judge and a humanitarian worker. She also acutely aware of the political nature of her appointments. Pillay is no stranger to the state-of-nature in post-war societies either. But it seems, however, this time in the case of Sri Lanka she is bit of far behind of the professionalism expected from her as the High Commissioner. It seems her cultural and religious heritage of being a Tamil origin has gotten her way. 

She started fighting the establishment even before she became a lawyer in Apartheid South Africa. Her fighting spirit was then lifted from local community to regional and then to the world arena. Today she fights for the universal suffrage for human rights as the High Commissioner.

She was born in Natal in South Africa in 1941. Her grandparents were among those Tamil Nadu Tamils whom were brought into work in Natal as indentured laborers by British Empire in 1860's. The Slavery Abolition Act had caused slaves deserting the white masters. When the indenture completed some Tamils decided to stay in Natal. Pillay is coming from one of those families. 

At the dawn of 60's, as a young and promising student Pillay must have met with uphill battle against the economic and social-political hardships of her family. The Apartheid government had disenfranchised these non-whites and banned the practice of her religion as well, Hinduism.

The following sums up her hardships and also the determination. However, this may also sums up the short fall of her professionalism in the case of Sri Lanka.
"She is the daughter of a bus driver, and her impoverished community collected money to pay for her university tuition and planted in her the determination to give something back"[1]
This ambitious young Pillay whom indebted to her local community became the first ever female law practitioner in Natal in 1967. Few years later, she came to represent anti-apartheid activists in Robben Island. Nelson Mandela was one of them in 1973. This connection was proven to be the significant connection for her later carriers. Mandela in return had appointed her to the High Court of South Africa in 1995. [2]

She was the first ever colored and female lawyer to enter to the High Court. This young lawyer has more then proven herself that she is driven, a fighter, and determined to go further. She also was the first ever South African to gain a law doctorate from the world prestigious university of Harvard Law School in 1988.

She made her first international appearance as a judge in the International Criminal Tribunal of Rwanda (ICTR) in 1995. There, she was among those three judges whom delivered the ground-breaking sentence to Jean-Paul Akayesu for committing sexual violations against Tutsis in Taba commune. The judgment rendered the sexual violence committed as a part of genocide. 
Next year, in 1999, Pillay was subsequently appointed for the Presidency of the Tribunal. She was the President of ICTR for coming four years. She was appointed as a judge on the International Criminal Court in the Hague since 2003 to 31 August 2008.[3]
Ban Ki-Moon had then appointed her to proceed Ms. Louise Arbour as the High Commissioner of the Office of Human Rights Council on 28 July 2008. She is still the High Commissioner in her second term in office for another two years since 2012. It is highly unlikely that she will be appointed for the third time this year.

Her appointments are not purely none political. The Security Council nominates the Secretary General, and the Secretary General nominates the High Commissioner.[4] Only safeguard remains against these nominations are being entirely political is the the fact that the permanent members of the Security Council consists of seemingly different actors. That is the only reason why that the entire body of UN Charter and the legal paradigm manages and sustains its legitimacy and authority. That is also why the High Commissioner could stand as the protector of international norms and ethics.

It is, however, very occasionally, that an average observer get to grasp this hidden interests of power politics in its true nature. In fact it is everywhere and anywhere to be seen for a keen observer.  One such recent incident within the legal framework is enough to explain myself. 

Feredrik Harhoffs, a Danish criminal judge in the International Criminal Tribunal of Former Yugoslavia (ICTY), accused the President of the Tribunal, Theodor Meron, for being complicit with some sentences delivered in the Tribunal. Meron was accused for changing the directions of some judgments due to the political pressure received from military leaderships of USA and Israel.[5] This shows the political nature of these appointments. 

Pillay, however, survived these sort of accusations throughout her carrier including the time she was holding the top politicized figure of Presidency in the ICTR.  

So, it is a fare assertion that Pillay knows how law and politics works, both domestically and internationally

Her judgments have never been publicly questioned before. 

But her judgment is in great doubt in the case of Sri Lanka today. Even the Deputy High Commissioner has expressed her opinion in a classified document regarding the widespread opposition existed within the UN itself against the Pillay's stance on Sri Lanka. This was just after the military victory was declared by the Sri Lankan Government. Pillay accused the Government violating humanitarian law, even thou the LTTE, a ruthless terrorist organizations, had been banned as a terrorist organization by 32 countries, including the EU, and had violated every single norms of humanitarian law.[6]

What is the motivation of this systematic allegations of Pillay that the Government of Sri Lanka has committed war crimes and crimes against humanity? Is it political or purely based on the determination to further the interests of human rights of those civilians whom were perceived as war victims by outsiders? Or is it personal?

I argue it is a personal campaign of Pillay which was directed against the Government of Sri Lanka. But now it has gathered some momentum within the established bureaucracy of the UN. And national and none international actors have come to bandwagon . 

I argue it is not political because the most powerful nation in the world, the USA, is not backing her up in the case of Sri Lanka. Russia and China is no way near of reaching a resolution of any short to interven in Sri Lanka. I argue, the plea is not humanitarian because when it comes to available facts on the ground in the case of final phase and post-war human developments the Government of Sri Lanka has made historical developments.

Those post-war developments have been appraised by some international actors as well. I have also written extensively about these developments in a thesis titling ‘Political Order, Truth and Justice’.[7] But Pillay seems determined to discard the developments made to drag the country back into the preys of greater international political interests in the name of human rights.

Soon after the arm conflict was concluded on 18 May 2009, the High Commissioner of the Office of Human Rights Council (OHCHR), Navanethem Pillay, had started pushing for a criminal investigation towards alleged violations of humanitarian laws and human rights laws by the Government of Sri Lanka. This is clearly evident in the press release of the OHCHR on 26th May afternoon in 2009.[7]

It was just eight days into the conclusion of war that Pillay had started the allegations

While the some speakers of this Special Session of OHCHR had pointed out the undue haste for calling that Special Session on Sri Lanka when the regular session was few days away wasting time and money of the UN, and some of the speakers had fundamentally disagreed on the OHCHR's approach towards Sri Lanka.[8]

No empirical data helped the High Commissioner with these initial allegations.

Navi Pillay was quoted in that press release saying that tens of thousands of civilians killed, injured or displaced in the final phase. The final phase is being the period from January to May of 2009 - some time it is refereed to as from the August 2008 to May 2009. I stick to the former as the final period. 

The number of bodies which had been counted by the UN Country Team itself on the ground in Wanni/Vanni from August 2008 up to 13 of May 2009 was blocked by publishing, possibly by the Pillay herself. This report had marked the numbers as 7,721 killed, and 18,479 injured.[The POE Report - para. 134]

For that reason, the casualty figures was now opened to speculations. After few western media outlet speculated the number as high as 40,000 - some times as high as 100,000 - and few prominent international figures were ignorant enough to stipulate the number publicly, the POE Report itself later sicked with the causality figures of  40,000. Even today the High Commissioner and part of the international community plays with this number.

After years of being at the forefront of alleging the Government for committing war crimes and crimes against humanity on 25th of last March i 2014 Pillay again managed to pass a resolution, A/HRC/25/L.1/Rev.1, in the OHCHR seeking a mandate to intervene in the domestic politics of Sri Lanka.  

The Article 10 (a) of this resolution enables her to monitor and access the developments of human rights situation in the country. 
The Article 10 (b) enables her to undertake a comprehensive investigation into the allegations in the absence of credible domestic process with tangible results.  

 (Navanthem Pillay speaks to Al Jazeera a day after the resolution A/HRC/25/L.1/Rev.1 was adopted)

Most of these systematic pressures against the Government seems to initially emanated from the High Commissioner alone.  

How could I say that?     

Kwang-wha Kang, the Deputy High Commissioner of OHCHR, had raised this issue with the US Ambassador to Geneva, John Clint Williamson, that Pillay faced fierce opposition within the UN itself regarding her personal call for criminal investigation. Kwang had stated this on 09 July 2009 to Williamson.  

Gotabaya Rajapaksa, the Defense Secretary of Sri Lanka, is also accuse Pillay for being biased on Sri Lanka because Pillay's ancestral family roots in Tamil Nadu.  Furthermore, Gotabaya asserts that she has been influenced by the coordinated extreme elements of Tamil Diaspora communities in Geneva and in western capitals.[10]

Pillay has a Tamil origin. Her parents came from Tamil Nadu. For the LTTE, Tamil Nadu was the initial training ground and the hide-out from the Sri Lankan and Indian authorities. Tamil Nadu is a federal state of India in the southern tip of the Indian peninsular. In proximity Jaffna in the Northern Province of Sri Lanka is closer to Tamil Nadu than to its own capital in the west, Colombo. So does the cultural and traditional relations between Tamil Nadu and Northern Province of Sri Lanka. The politics of Tamil Nadu had constantly been affected the Sri Lankan conflict to a significant degree. 

North and Easter parts of Sri Lanka accommodate great number of local Tamil population. The LTTE used the slogan of fighting to free the Tamils from the oppressive Sri Lankan Government and had mobilized the people and resources worldwide along that line. 

Wound not Pillay have any emotional relations to her ancestral land of Tamil Nadu and her Tamil compatriots? 

There are NGOs that are still claiming to be representing the interests of LTTE agenda abroad, and they have official lobby groups in Geneva to influence the UN authorities. The unofficial capacities are yet to surface. The followings groups are very prominent in among them; Tamil Coordinating Committee which is based in Norway and led by Nediyawan; the Transnational Government of Tamil Eelam which is based in New York and led by Rudrakumaran ; the LTTE Headquarter group which is based in France led by Vinayagam; and the Global Tamils Forum which coordinates all LTTE-linked groups led by the Father Emmanuel in London. This person called Father Emmanuel apparently has connection to the British MP David Miliban. 

Father Emmanuel with David Miliband
 Gotabaya alleges the High Commissioner has some influence from these extremist elements.

Why do I claim that the global political interests are not showing a strong case for a criminal investigation in Sri Lanka?

The political interests of powerful nations are hardly stay away from these sort of exploitative opportunities. The interesting development of this front in the case of Sri Lanka is that the most powerful nation on the plant, the USA, had initially offered great assistance to the Government of Sri Lanka for eradicating terrorism within the country.

Eventhou, the US has brought the latest resolution to the OHCHR, the US has refused two legal appeals brought against the President of Sri Lanka and the Army General of Shavendra Silva within its own jurisdiction. This is a very strong indication of that the USA is not truly interested for a criminal investigation. Of cause it has be pleasing the international crowd occasionally pretending to do otherwise.

It is obvious, the England is a big player of inserting political pressure within the UN mechanism for a criminal investigation, which Pillay may enjoy of receiving as it circumnavigates the great deal of attention away from her. France is most likely reciprocating the England with a favor in UN as their shared interests in former colonial past and the future, which is going to be challenging, beg  them to act that way.

Of causes, these countries have to respond to those local political pressure of Tamil Diaspora communities, NGOs and some other personal actors accordingly as well.

It is explicit that Russia and China is no way near of reconciling their difference in the Security Council if it comes to that with their veto powers.

Some could argue that Pillay's judgment is purely justified - even if it is shaky -on the bases of factual realities of the final phase and post-war developments in the country. This is what Pillay is saying too. Does this argument hold the ground for Pillay?
The Sri Lankan Army had to rescue about 300,000 civilians from LTTE where they were kept forcibly in No Fire Zones as human shields since January to May 2009.[11] The LTTE had violated norms and laws of war to an unimaginable extent.[12] The Army had taken all feasible precautionary measures.[13] The ground realities had lead to slow the phase of operations. The Army bear heavy casualties. The Army had taken all measures to respect the humanitarian principles of distinction and proportionality.[14]

So, how many civilians have been killed in the final phase?

New census collected shows the civilian casualty figures were mounted to 7,934 in the final phase. And it also reveals that 2,635 people went missing from the area in Wanni. Within those killed, few thousands of civilians were killed by the LTTE itself in the final phase - including the High Commissioner do not dispute that. From those who went missing 1,625 of them happened to be had been recruited by the LTTE itself. Furthermore, many had fled the conflict and the country illegally to foreign countries. 

It is about 6,000 that killed as incidental loses in the final phase. 

After all those anomalies considered, the most likely number of civilians killed in the final phase as incidental loses shall be amounted to about 6,000 - read the thesis elsewhere for detailed breakdown of these numbers and why an exact number would not be possible to provide.[15]

Meanwhile, the Sri Lankan Army had sacrificed more than 3,000 soldiers in the final phase along. More than 20,000 soldiers sustained injuries.[16]

Since the conflict ended, the Government has demined about 5,000 sq of land, and resettled about half of millions IDPs; about 100,000 houses are being built; child cadres have been given education and reintegrated into communities; livelihood assistance programs have been attended; and only an handful of cadres remain in custody stay there with legal proceedings. Most importantly, in the context of post-war doctrinal even the elections have been held in both Eastern and Northern Provinces. Northern Province have chosen a Tamil candidate as the Governor.   

After five years of cessation of the arm  conflict, Sri Lanka has not recorded even one single terrorist attack. The country is to became a upper middle income country soon. The average income has increased to 6,000 US dollars. The country is buzzing with long term investment projects in infrastructure - Highways, railways, ports and airports are being built.

That is not to say that there is no post-war issues remain in the country. The long terms investments are yet to make any different to ordinary lives of Sri Lankans. The emergence of some attributes of an authoritarian attitude in the constitution; hate speeches by polarizing extremist like Bodu Bala Sena and some other groups, some military presence in North and East and its presence in  civilian administrations  and restrictions on media freedom could be pointed out as those.  

I have argued elsewhere, however, what matters in the country right now is the political order which could insert the law and order of the country that was historically lacking. To me, the short-term odds are overridden by the prospect of long term good which society could benefit in years to come.  
In conclusion, how could one understand the Pillay’s judgment on Sri Lanka? It is in her favor that one understands, and it is also the righteous way to understand, that there are many factors which could come together influencing her judgment and allegations in the case of Sri Lanka. There are some elements of established bureaucracy within the United Nations itself - this element is sometimes even try to go beyond the real political interests of the world - may favors Pillay. There could be some individuals that genuinely - but ignorantly - driven by the concerns of human rights have some influence on her judgment as well. The political interest of some states definitely favor the judgment of Pillay too. The extreme elements of separatist agendas too definitely favor Pillay. Those reasonable fears regarding the country being dragged down by the Rajapaksha family could also play a role in Pillay’s judgment. The genuine concerns of few relatives of those who were killed and disappeared still may have some part to play in Pillay's judgment.

However, do any of the above concerns give the legitimacy to Pillay to question the nation-building process of the Government? My observations are inclined to say 'no'. 

In the case of post-war Sri Lanka, the Pillay's judgment has been affected more by her personal reasons than humanitarian or political reasons. All the other concerns are seems to me secondary to her when they are compared with her cultural, religious and ancenstoral relations she has to Tamil of Sri Lankan. 

She has deliberately failed to pay even slightest attention to the available facts on the ground in the case of Sri Lanka. These includes her ignorance of the casualty figures collected by her won UN Country Team. She is paying very insignificant attention to all those empirical data gathered by the Government agencies and NGOs. She has given very little attention to the significant post-war developments.  

The responsibility of her position as the High Commissioner for Human Right Council shall entail taking the decisions that are necessary for the concerned state. Good of the mass shall be the priority over the rights of few. The international community and the General Assembly shall question the responsibility of the High Commissioner in the case of Sri Lanka.     

Her professionalism seems to have far-short-fell of the expectation of a political High Commissioner due to the fact of her cultural, religious and ancestral relations to Tamils of Sri Lanka.       

Edited - 17th May 2014