War and peace: Geneva and human rights

Prof. Rajiva Wijesinha has published a slim memoir entitled ‘Representing Sri Lanka’ on his experiences at the Human Rights Council in Geneva with sub themes on Rights and Sovereignty (Godage 2021). It focuses primarily on the period 2007-2009 under Ambassador Dayan Jayatilleka in Geneva culminating in the famous adoption of a positive resolution in favour of Sri Lanka, and its aftermath which he described as ‘a slow self-destruction in Geneva and Colombo’. 

These are themes that he has written on earlier with the latest work comprising a quartet – ‘Truimph and Disaster: the Rajapaksa Years Part I – Success in War (Godage 2015) recounts his time in the Peace Secretariat 2007-2009, Part II under the same title ‘Failures in Reconciliation’ (Godage 2016) which explores his role as a MP, and ‘Lakmahal in War for Peace’ (Godage 2019). 

Rajiva is well-qualified to recount his experiences – he headed the Peace Secretariat (SCOPP), was Permanent Secretary to Mahinda Samarasinghe’s Ministry of Disaster Management and HR and a national list MP who used his decentralised budget for practical welfare projects in the north/east after the war was won in 2009. A narrative of fighting misrepresentation in international fora and avoiding the ‘arrogance and excessive nationalism’ that characterised Mahinda Rajapaksa’s presidency (MR) after 2009.

Rajiva’s immediate justification for his latest offering is that he has not done justice to the intensity of the work undertaken on these assignments. One is immediately struck by the frenetic pace that Dayan and Rajiva kept at sessions in Geneva. In Reflections there are references to a letter he drafted to the Director HRW about a rampage against Sri Lanka a Ms. Hogg was indulging in, Radhika Coomaraswamy’s critical report on LTTE using child soldiers which also recognised the LTTE being subject to local laws. 

Unfortunately, the texts of these documents are not inserted although they are in an earlier work (Part I of the Rajapaksa Years) as they also reflect his sense of humour – for instance to the HRW a reference to the drunken man in a pigsty and the hog walking away to avoid undesirable company! The triumph in Geneva 2009 is described in some detail which is the high point of the book. This Resolution in 2009 (11/1) in effect welcomed the military defeat of the LTTE but also recorded the GOSL’s commitment to devolution and to ensure no discrimination against ethnic and religious groups. The negative 2012 Resolution against Sri Lanka (19/2) and how it came about is also discussed. 

Sri Lanka has faced Resolutions at Geneva prior and subsequent to 2009. In Reflections Rajiva refers to an Argentinian sponsored one in 1983 after the July riots but this could not have been at Geneva as the OHCHR was established in 1993, the British Resolution tabled in 2006 but not taken up, the unsuccessful Canadian/US resolution in 2011 which was still born culminating with the ominous threat ‘we will get you next time’, the three Resolutions in 2012 (19/2), 2013 (21/1) and 2014 (25/1) which were carried against Sri Lanka. 

The ‘co-sponsored’ Resolution 30/1 backed by Mangala Samaraweera in 2015 which inter alia contained ill-considered commitments for participation in a Sri Lankan judicial mechanism, including the special counsel’s office, of Commonwealth and other foreign judges, defence lawyers and authorised prosecutors and investigators, and consequent Resolutions 34/1 and 40/1 in 2017 and 2019 which were adopted without a vote. More recently Resolution 46/1 in 2021 which was carried in the aftermath of the present Government’s decision in 2020 not to cooperate with Resolution 30/1.

But the larger issue has always been how did Sri Lanka squander its best assets in foreign policy under President MR which was inter alia a functioning democracy, checks and balances between the three organs of State despite weightage to the executive presidency, the 13th Amendment which had established devolution, Constitutional parity of status for Sinhala and Tamil languages, good faith negotiations with the LTTE despite their international proscription and their constant undermining of that process, the GOSL continuing to provide health, education and welfare in areas controlled by the LTTE despite the latter’s terrorism, defeating the LTTE militarily, and post-war freer elections and infrastructure development in the north-east, demining and rehabilitation of ex LTTE cadres.

Rajiva does provide several answers in his quartet – the failure of the Government to prosecute those responsible for the deaths of the Trincomalee 5 despite assurances and the evitable international fallout, Garth Evans (‘self-serving old rascal’) role – his speech at the eighth Neelan Tiruchelvam memorial 2007 where he advocated R2P, the skilful manipulations of the pro LTTE Tamil diaspora in the West, false propaganda against the armed forces, disinformation and sometimes crass stupidity by gullible UN agencies (a letter from Rajiva to the UNDP Head about not condoning LTTE pretensions at sovereignty in the context of an LTTE document on ‘judicial administration in Tamil Eelam’) and Western envoys at Geneva and hostility by certain Western nations, and of course Sri Lanka’s self-induced errors. 

The latter includes personality clashes and protection of fiefdoms by Ministers in the same MR cabinet overlooking Foreign Affairs and HR, disputes between foreign secretaries and their ministers, a senior Foreign Ministry female staffer and her disproportionate and negative influence in the MR administration, a lack of a coherent foreign policy which includes sidelining our own Ambassador and neglect of friendly States that assisted us in the almost impenetrable wall that Dayan built up as Ambassador in Geneva, Dayan’s recall from Geneva and the closure of SCOPP, failure to engage at Geneva after Dayan and of course hubris and excessive nationalism after the war was won and the failure at reconciliation. 

But there are other causes as well which are reflected in the negative Resolutions at Geneva from 2012 – the need to investigate allegations of extra judicial killing and enforced disappearances, torture and reprisals against civil society and journalists, the protection of the freedom of expression, attacks on religious minorities including Hindus, Muslims and Christians. Rajiva does refer to the murder of a prominent Editor and the abduction of another in his writings but does not deal with all these issues fully. Resolution 46/1 in 2021, records the militarisation of civilian government functions and the development of possible strategies for advising accountability and support for relevant judicial and other proceedings, including in Member States, with competent jurisdiction. 

Rajiva’s initial foray into foreign policy started with the Peace Secretariat established consequent to the ceasefire agreement (CFA) with the LTTE by Ranil Wickremesinghe (RW) when he was PM under a cohabitation government with President Kumaratunga (CBK) from 2001 to 2004 which was short lived and strained. The author served as Legal Advisor to CBK from late 2003 till she relinquished office in 2005.

The CFA was signed by RW unilaterally without prior consultation with the President and the writer assisted Lakshman Kadirgamar, her principal Advisor, in drafting responses to it. The situation forced the President to remove three Ministers including defence consequent upon a reference to the Supreme Court drafted by the writer seeking the Court’s opinion on the constitutional position of the President in relation to defence. 

The Easter Sunday bombings in April 2019 by Muslim extremists at which hundreds of Catholics perished in churches which took place under the President Sirisena/RW Government has compounded the human rights situation in Sri Lanka. The fallout by a failure to prevent that atrocity and identify the masterminds despite several Parliamentary and Commissions of Inquiry now haunt both the former and present administration.

Rajiva writes with clarity and his views are trenchant and bold. There is a mine of information which will aid future research as well, and although he should perhaps avoid repeating some of these themes in several books and include a well-researched Index, his commitment to record his experiences and not be deflected by a former President’s comment to him, doubtless well-intended, ‘since you write only in English so how was anyone to understand’ is commendable. 

(The writer is a President’s Counsel and was Legal Advisor to the President 2003 to 2005, a Member of the GOSL delegation to India on defence matters 2004/2005 and to the UN in 2005, and a Member of the Advisory Board appointed by President Sirisena after the Easter Sunday bombings in April 2019.)