Gajalakshmi Paramasivam – 11 Sept  2015

UN or No UN?

Sri Lankan War Crimes & Leader of the Opposition Position

“The most important thing, from our point of view, is that any proposal be something that is developed in consultation with all of the communities in Sri Lanka. It cannot be something that is brought out and put into effect in order to just answer the mail from Geneva. It must answer Sri Lankans’ own need to actually deliver on accountability — the establishment of the truth, the prosecution of the most responsible individuals, and a reconciliation of society based upon the fact that crimes were committed by individuals, not whole communities. Certain people were responsible and others were not, and the society should come together across the sectarian, ethnic, and linguistic divides.”

Amb. Stephen Rapp on Sri Lanka’s War Crimes Investigation ; By Just Security ; Wednesday, September 9, 2015 at 3:46 PM

The above confirms that  value of Sri Lankan War Crimes investigations needs to be for all Sri Lankans on Equal footing. Former President Mahinda Rajapaksa was strongly against external parties undertaking the investigations. As per my thought-order – this would have been because of his own actions which may not have the approval of higher authority – i.e. the UN as per its policies. Fundamentally, this is not different to the challenge faced by Australian Government in relation to Syrian War. They say all is fair in Love and War. When does it become fair? When one is on her/his own – beyond the protection of the ‘system’. If one takes benefits from the system – then one has the duty to follow the system as per one’s knowledge.

In the case of the Sri Lankan civil war – combatants on both sides included large numbers who had little or no knowledge of the ‘system’ and its structures and therefore their DUTY as per Common Law. The way America is now not able to strictly follow the laws of war in relation to Syria – the leaders on both sides of the Sri Lankan war also would have found it difficult to follow the law. So long as one followed the law to the best of one’s knowledge and used one’s Truth beyond that level – that person is not guilty of any crime. This could be said of majority Tamil Tigers known to me personally. To their minds, they were protecting their ‘homeland’ from invasion. At individual level – majority soldiers in the Sri Lankan army also would likewise be ignorant of the rules and laws of such war. Punishing them while some of the leaders of the opposition are in senior official positions – would be unjust.

But it is important that there is some measure in place so that the status of the Tamil civilian is not reduced by Sinhalese officials and/or civilians through the Terrorism label. Relative to the Sinhalese soldier – the Tamil combatant has lesser protection from the official system.

Therefore when someone is punished when as per her/his mind – s/he was doing the right thing, the punisher is in the wrong unless the punisher is acting in the consciousness of her/his DUTY and no more. One who is conscious of Duty – ought to have been driven by the laws governing her/his position or by her/his Master’s voice. In the case of majority Tamil Tigers – it was their Master’s voice. Unless Sinhalese were more conscious of the law their soldiers would have known their duty as defined by their Master. This would have been General Sarath Fonseka about whom the latest report says:

‘A teary-eyed Fonseka said that he would never forgive the Rajapaksas for destroying his life.’

THAT is the bottom-up judgment through the Subjective system. Yet the Buddhist Clergy continue to endorse Mr. Rajapaksa:

The Island Paper - The sidelining of Mahinda is the misfortune of the nation
- Muruththetuwe Ananada Thera:

“I don’t think anyone can forget the services rendered to this country by Mahinda Rajapaksa. If anybody is prepared to forget his services to the country then they are the type of people who will forget their own parents. He won the war that no leader in this was able to win in three decades. He put his own life on the line to see that the people of this country were freed from the scourge of terrorism. We are talking of a man who saved the nation and developed the country. That is why we support him.”

It was General Fonseka who faced risk to his life in the war zone. If he felt defeated by Mr. Rajapaksa – then no one can claim that the Government defeated the Tamil Tigers. Anyone who supported Mr. Rajapaksa in claiming victory through armed forces – is insulting the Head of the armed forces who was doing his Duty as per his understanding of his position requirements.  There can be no celebration without including that General. How could such a Community be expected to be just to outsiders – especially outsiders who according to the law are insiders?

The war-crimes investigation question needs to be asked in this consciousness.  Most Sinhalese refer to the Tigers as Terrorists. It hurts those of us who had family members within  the LTTE. Those of us who are driven by Law and Order would apply such assessments also to cover other armed groups in our community. We do not hear Tamils calling JVP Terrorists. Hence we are entitled to the LTTE not being called Terrorists either – except through laws EQUALLY applicable to both sides. The UN’s DUTY to the Victims of War – including those of us demoted through the Terrorism label – arises from its Power-Sharing with those who have themselves been proven to be unjust, including to their own Community. In deciding the extent of the assessment and judgment resulting from such assessment – the UN needs to be true to itself.

The UN may not have known the depth of the ethnic problem back then when it listed LTTE as Terrorists. Now that it knows – it needs to take measures to eliminate the excesses relative to the other side. Until then the UN has the moral authority to abstain from approving a Domestic Inquiry.

The current opposition from within the Parliament in relation to the position of Leader of the Opposition – confirms that the risk of Discrimination through majority power continues to be high. No one with official status has come up with the principle/proposed Law that would clearly define the criteria through which the Leader of the Opposition Position is to be filled. Where there is a position – there are laws in relation to that position. No Sri Lankan law-maker has suggested what that law is in relation to his position. They continue to speculate.

Common Laws raise us from animal behavior to godly Sovereign state. Animals follow their own instinct for their own survival. Here the question is whether :

(a)    The killing/opposition to Tamil being eligible for the position was/is for their own survival or

(b)   To clear the pathway of Common Laws towards Divine Sovereignty for any Sri Lankan.

In terms of war crimes, General Fonseka confirms that it was for the former. This has also been confirmed by the People through their votes. These are Natural outcomes.

In terms of the Leadership Position – Natural Justice has delivered through the People and through the desires of Leaders who want it both ways.

The way the Government manages the Leadership position conflict, would be the key to the way it would manage the war-crimes investigation conflict.

The latest issue through which we could assess whether a war-crimes inquiry would clear the pathway mentioned in (b) above, is the Leader of the Opposition Position. The Law is silent on this – as is the UN – confirming that the UN is reactive rather than being proactive. If we Sri Lankans get it right in relation to this issue – we are confirming that we are developing our own solutions. Extremists on both sides would block this pathway. If they win – then they confirm that we  were wrong in taking ‘foreign’ resources for our side wins.

Most of us could use the system of Marriage to know which pathway we are using and also how genuine we are in making the promises we make when we are ‘given’ slots in public forums. When pleasures are enjoyed within the boundaries of marriage laws – we have the opportunity to ‘share’. In de facto partnerships – this is largely on quid pro quo basis – as in the barter system. But those who respect Traditional Family system would tend to pool their contributions and draw from that common pool rather than through individual partnerships. During his recent interview, Mr. Sampanthan confirmed the reality for lower caste Tamils as follows: ‘The JVP’s composition and inclusivity could also send a crucial message to the TNA, on the importance of going beyond Vellalar gentlemen’s politics, to a political strategy that better accommodates and represents the Tamil social spectrum, and works towards increased respect for parity’

The parallel of this in terms of the war is that we include combatants and soldiers on de facto basis rather than on the basis of Common Law of which they have little or no knowledge. This then would mean that no combatant could be tried in a Court of Law except on the basis of laws that cover this kind of combat. The advantage in the Vellalar leadership is this structure based on traditional leadership. It is not different to Buddha Sasana  being used to regulate Buddhists. The Caste system is the parallel of this – but without Constitutional endorsement.

Those of us who believe we are Sri Lankans are Observing to identify where our strength is needed.