‘Home grown’ war crimes inquiry

The most diabolical and fiendishly clever policy position that the common opposition has taken is that they will not allow our war heroes to be tried by any international war crimes tribunal, but that any allegations of war crimes will be looked into by a domestic tribunal. The common opposition candidate himself has come before the people and pledged publicly that no international war crimes tribunal will be allowed to try any war hero.

The Sunday Island 28-12-2014

‘Home grown’ war crimes inquiry
December 27, 2014, 6:08 pm
The Sunday Island 28-12-2014

The most diabolical and fiendishly clever policy position that the common opposition has taken is that they will not allow our war heroes to be tried by any international war crimes tribunal, but that any allegations of war crimes will be looked into by a domestic tribunal. The common opposition candidate himself has come before the people and pledged publicly that no international war crimes tribunal will be allowed to try any war hero. However he has given a statement which was carried in  The Hindu and the Indian Express to the effect that a domestic mechanism would be set up to look into allegations of war crimes. This was later confirmed by Champika Ranawaka.  The people of this country have got used to the idea that what is bad is an international inquiry into war crimes. By the mere addition of the word ‘domestic’ most people would be lulled into a sense of false security on the assumption that since such an inquiry will be conducted by ‘our people’ the war heroes will not face any problems.

The first thing that we have to realize is that this pledge to hold a domestic inquiry into war crimes has not been adopted by the common opposition to please anyone in Sri Lanka. Nobody in Sri Lanka is really asking for a domestic war crimes inquiry. The TNA did ask for an international inquiry into war crimes but they never asked for a domestic process. In fact it is highly unlikely that the TNA will have any faith in a local process. The hope of the TNA would be that an international process will pave the way for bigger things such as a referendum in the north and east for the creation of a separate state. A domestic inquiry will not necessarily lead to such an outcome and as far as the political objective of the TNA is concerned, will be largely unproductive except in terms of wreaking revenge. If given a choice between the implementation of police powers and having a domestic war crimes inquiry, the TNA would undoubtedly opt for the former rather than the latter because police powers takes them some distance towards their objective.

The Western powers on the other hand have a different agenda in mind. For the West, the need for regime change in Sri Lanka is predicated not so much on the need to administer justice or to express solidarity with the Tamil cause but for geo-strategic interests where the patriotic camp on Sri Lanka has to be comprehensively defeated and a more pliable government installed in Colombo. The way to do that is to put the leaders of the patriotic camp out of circulation for good. If the present crop of leaders of the patriotic camp is removed from the scene they know that it will take years if not decades for Sri Lanka to produce another crop of leaders who can fire the imagination of the public in quite this manner.

The best way to take the Rajapaksas and the war heroes out of the equation would be to have an international war crimes tribunal. But there is no mechanism that can be used to institute an international war crimes inquiry against Sri Lanka. There are only three ways in which a war crimes inquiry against Sri Lanka (or any other country for that matter) can be launched. The first is by the UN Security Council ordering the setting up of such a court. When the Security Council makes such an order the entire UN membership has to fall in line and even provide funding for the upkeep of that war crimes tribunal. The International Criminal Courts for the former Yugoslavia and for Rwanda were created in that manner.

The second method is to utilize the mechanism of the International Criminal Court (ICC).  There are three ways in which the ICC can initiate an inquiry into war crimes in a given country. The first is by the UN Security Council requesting the ICC to have such an inquiry against a given country. When the UN Security Council makes such an order, the ICC can proceed even if the country concerned is not a member of the ICC.  The second method by which the ICC can initiate an inquiry against a country is if a member state brings to the notice of the ICC Prosecutor that a situation in a particular country needs to be looked into. But for this method to be used, the country concerned has to be a member of the ICC and within its jurisdiction. Sri Lanka however, is not a member of the ICC. The third method in which the ICC can start a proceeding against a country is if the Prosecutor feels that an issue that has arisen in a country warrants inquiry. But for this too, the country concerned has to be a member of the ICC and within its jurisdiction. Since SL is not a member of the ICC, the Prosecutor cannot take any action.

The West at a dead end

So whichever way we look at it, the West has no way of instituting an international war crimes tribunal against Sri Lanka. The UN Human Rights Council can hold as many inquiries and publish as many reports they like but they do not have the authority to set up a war crimes court with jurisdiction over Sri Lanka. Some may think that the Western powers will use the authority of the UN General Assembly (UNGA) to set up a war crimes tribunal against Sri Lanka. The UNGA is supposedly the highest decision making body in the UN, but in actual fact is subordinate to the UN Security Council which is the real decision making body so much so that the UNGA is expressly forbidden from taking up any matter that is being discussed at that moment in the Security Council! There is also the fact that the UNGA has never set up a criminal court with regard to any country – that is the exclusive preserve of the UN Security Council.

Furthermore, trying to collect votes in the UNGA will be much more difficult than in the 47 member Human Rights Council. Even in the UNHRC the Western powers have not done well. With the entire power of the USA and the EU mobilized against Sri Lanka, the Western powers managed to get only 23 votes as against 24 that opposed their resolution on Sri Lanka in 2014. So taking the battle to the UNGA will not be easy even for the Western powers. The general assembly does have the power to ‘Discuss any question relating to international peace and security and make recommendations on it.’ However this power does not extend to setting up war crimes tribunals since they can make only ‘recommendations.’

Nobody really takes notice even if the UNGA makes recommendations against a country. In 1952, when Dudley Senanayke entered into the Rubber-Rice Pact with China, the USA had moved the UNGA to impose sanctions against the newly formed Communist government of the People’s Republic of China. The USA could not get sanctions passed against China in the Security Council because of the veto power of Russia. So they settled for second best and got the sanctions passed by the UNGA. The USA which had just won the Second World War was at that time at the zenith of their power and influence so they could muster enough votes to see the sanctions passed. But nobody took any notice because the UNGA can make only recommendations and has no mechanism to see that its decisions are implemented. Even Dudley Senanayake did not think twice before flouting the UNGA sanctions against China. Rubber was one of the items on the prohibited list, but he signed an agreement to sell rubber to Communist China and the USA could do nothing but fume and cut off aid to Sri Lanka. It is unlikely that Dudley would have dared to flout the UN sanctions against China had they been imposed by the Security Council.

So whichever way we look at it, the Western powers don’t have any method of instituting an international war crimes tribunal against Sri Lanka. There is just one way to get to that objective - getting the government of the country concerned itself to set up a domestic war crimes inquiry. This is the way the special war crimes tribunals for Sierra Leone, Kampuchea and Lebanon were set up. The governments of those countries took the initiative to set up the tribunals and later sought advice and logistical support from the UN. The law applied by such courts will be a mix of international and local laws. It is inevitable that such courts will have to borrow a great deal from the body of jurisprudence built up by previous international criminal courts such as the ICTY (International Criminal Court for the former Yugoslavia) as most countries do not have any provisions relating to ‘war crimes’ in their domestic criminal legislation – certainly Sri Lanka does not.

Besides, as we pointed out earlier, nobody in Sri Lanka is asking for a domestic war crimes tribunal. The only reason for the common opposition to make such a pledge is to please the West. The West has no way to institute a war crimes tribunal against Sri Lanka except by getting the government of Sri Lanka itself to cooperate by starting a domestic process. What the people of this country has yet failed to realize is that when the common opposition says that they will not allow war heroes to be taken before any international war crimes tribunal, they are in fact pledging to disallow something that can never be done. Even more importantly, the people and the government itself has not realized that by pledging to institute a domestic inquiry into war crimes, the common opposition is opening the only door available to the West to get a war crimes process started in Sri Lanka. The pledge of a domestic war crimes tribunal IS the Western conspiracy in disguise!

One would think that with an election on, the common opposition would avoid saying anything that may arouse the suspicions of the public. The reason why they announced to the public that a domestic war crimes tribunal will be instituted is obviously at the behest of their Western friends. The West obviously wants to ensure that their investment produces results and they want to hold the beneficiaries of their patronage to account. It would also be useful to seek a mandate of sorts from the Sinhala public for this domestic war crimes tribunal so that nobody can say later that the common candidate did not make his intentions clear before the people voted.

Another reason why the common opposition has begun talking openly about a domestic war crimes inquiry is obviously to enthuse the northern and eastern Tamil voter to go to the polling booth. The biggest fear that the common opposition has is that the northern Tamil voter would remain apathetic and thereby reduce one of their best potential vote banks. They obviously think they can strike a balance between the Sinhalese and the Tamils by telling the former that they will not cooperate with any international war crimes inquiry and satisfying the latter by telling them that they will institute a domestic war crimes inquiry.    

 FRAUD, not commissions

The common opposition has based virtually their entire campaign on allegations of massive corruption against the government. This is of course quite understandable as issues such as the abolition of the executive presidential system or the re-introduction of the 17th Amendment can hardly be expected to fire the imagination of the general public. Talking about rampant and unprecedented corruption however would make many people stand up and take notice. One thing that people would not have failed to have noticed is that politicians in every government somehow end up richer after wielding power. So simply saying that the politicians of the present government are corrupt is not going to set the people against them as the people know that virtually all politicians are on the take.

So the election manifesto of the common opposition has made the assertion that while corruption and fraud ‘have always been there’, things have reached ‘unprecedented and unheard of levels’ under this government. They have elaborated by saying that this is not a government that takes 10% but one that takes 90%. They have taken the argument further and claimed that since the government was stealing 90% of what they are supposed to use for the development of the country, once the common opposition comes into power all that money would be utilized for the correct purpose so the country would have ten times the development. They have even put a figure on these assertions by making the claim in their manifesto that the Kadawatha – Kerawalapitiya segment of the outer circular highway cost 7.3 billion per kilometre and of that, no less than 5.2 billion per km was being purloined by corrupt government politicians and officials. Since the common opposition manifesto was published, we see that the common candidate seems to have modified these calculations somewhat and now we hear him saying that ‘two thirds’ of the cost of these infrastructure projects was going into the hands of corrupt politicians.

Whether the proportion going into the pockets of corrupt politicians is 90% or two thirds (66%), that’s still a hefty amount. Saying that commissions and kickbacks may be changing hands in awarding contracts for these projects is one thing, but to say that the cost of the project itself was being inflated several fold by crooked politicians and officials is another thing completely. Among the accusations made by the common opposition was that the actual cost of the Southern expressway was only 2.5 million USD per kilometre but it had ballooned to 7.5 million USD by the time the project came to an end (It was actually more like 6.7 million USD). One notes that the highway projects that came after the Southern Highway cost much more per kilometre. The Colombo-Katunayake highway cost 13.7 million USD per km   while the Kottawa-Kaduwela segment of the Outer Circular Highway cost 20 million per km, the Kaduwela-Kadawatha stretch 43 million USD per km and the Kadawatha-Kerawalapitiya stretch a whopping 57 million USD per km. The Godagama- Hambantota highway which is a continuation of the Southern Expressway was estimated to cost  19 million USD which is three times the cost of the Kottawa-Matara segment of the same highway.

When a layman looks at the difference in cost per km between the various highway projects, they may be led to believe that what the opposition says is true and that these costs have been inflated with somebody skimming off the difference. The opposition has been plumbing these suspicions for all they are worth, but can there be any foundation in the allegations being made? For example, the opposition is trying to say that while the cost of the Southern expressway was just 2.5 million per kilometre, somebody has inflated the cost to 7.5 million USD per km and has pocketed the difference of five million USD. If what the opposition is saying is true then the Chinese and Japanese contractors who built the various segments of the Southern expressway would have been given only 2.5 million USD per kilometre and the rest purloined by local politicians and officials.

None of these highways however have been built with government funds. They have all been built on concessionary loans from Japan and China. If one takes the Southern Expressway, two segments were built with Japanese loans and two with concessionary loans from China. The contractors who built these roads were also from Japan and China. The accusation is that the cost of the Southern highway was inflated twice over for corrupt Sri Lankan politicians to pocket the difference. What that means is that the Japanese and Chinese contractors who built the Southern expressway were given only 2.5 million USD per kilometre and the Japan International Cooperation Agency and the Exim Bank of China had given the other five million per km to corrupt Sri Lankan politicians.

Organisations like JICA and the Exim Bank of China deal with the public funds of Japan and China - money that belongs to the taxpayers in those countries. It is highly unlikely that such institutions give one third of the money to Japanese or Chinese contractors to build a road and give more than twice that amount as ‘santhosams’ to corrupt government politicians in the host country. Both JICA and the Chinese EXIM bank are active not just in Sri Lanka but in dozens of other countries and they don’t have unlimited funds to just pour into the pockets of third world politicians. Besides, organizations like JICA and the Exim bank of China obviously have their internal processes to ensure that their money is well spent. As we pointed out last week, China imposes the death penalty for corruption. If the Chinese Exim bank had given the Chinese contractor just 2.5 million per km to build the Southern Highway and then given five million per km to crooked Sri Lankan politicians, the Chinese contractor would have complained to their government and got the Exim bank officials jailed or given the death penalty.

So what we have to realize is that while commissions and kickbacks may have changed hands in commissioning these projects, it is very unlikely that the cost of the project itself would have been inflated several fold for Sri Lankan politicians to pocket the difference. In reading the annual reports of the Road Development Authority it can be seen that the contractors responsible for the actual construction of these highways are held to account for the quality of the work being done. There were instances when the RDA has complained that the quality of the asphalt laid is not up to specifications and that the contractor should redo the whole thing. At times these disputes have ended up before arbitrators. If the contractor had been given only 10% or one third of the project cost with the rest going to corrupt politicians, one would have seen contractors climbing on to roofs and water tanks every week, demanding the rest of the money for them to do the job properly. The contractors would in fact have complained to their governments saying that JICA and the Exim Bank of China were giving the lion’s share of their taxpayers money to corrupt politicians in Sri Lanka, and not giving the contractors enough to do the job properly.