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Asian Tribune is published by World Institute For Asian Studies|Powered by WIAS Vol. 12 No. 2648

How competent is Ms. Louise Arbour to protect human rights in Sri Lanka?

H.L.D. Mahindapala

H.L.D. MahindapalaH.L.D. MahindapalaAt a politically sensitive time, when the Sri Lankan forces are advancing successfully into Tiger-held territory without jumping into the horrors of Kosovo, or Iraq, Ms. Louise Arbour, the UN High Commissioner for Human Rights, has issued a statement on human rights violations in Sri Lanka, warning that violations of the rules by any party “could entail individual criminal responsibility under international criminal law, including by those in positions of command.”

Stating that all parties are obliged to protect civilians without discrimination she lists the following as crimes punishable under international law: (1) the arbitrary deprivation of life, (2) arbitrary detention, (3) forced displacement, (4) enforced disappearances, (5) torture and other cruel, inhuman or degrading treatment or punishment and (6) the recruitment and deployment of children as soldiers

Every one of these criminal acts violating international humanitarian law has been committed by Velupillai Prabhakaran from 1975 – the year in which he personally shot dead the unarmed, mild-mannered, Tamil Mayor of Jaffna, Alfred Duraiyappah. And Ms. Arbour has allowed him to get away with it. His national and international crimes have been documented by independent NGOs. All this and more, including the ethnic cleansing of Muslims from Jaffna in 1990 and the forced exodus of Tamils from Jaffna later, would have come under the scrutiny Ms. Arbour's because she could not have issued a warning without knowing who is doing what to human rights in Sri Lanka.

Though she has issued a bland statement referring to "those in positions of command", the contest in the field of human rights in Sri Lanka is between Ms.Arbour and Prabhakaran. Ms. Arbour, who earned her spurs as the prosecutor of Serbian criminals, will agree that others are minor fry compared to Prabhakaran -- an “individual (whose) criminal responsibility under international criminal law” is beyond any doubt. He is also the sole commander of the Tiger cadres who swear loyalty to him and him alone and not to a constitution, or any other democratic symbol like the Queen of England, or an institution. This places the entire responsibility of the crimes committed by the Tigers directly on the shoulders of Prabhakaran.

In short, he is the LTTE and the LTTE is Prabhakaran. All authority and power, especially for committing war crimes and crimes against humanity, flow from him. There is no separation of powers in his one-man regime. Being an authoritarian regime, where no dissent is allowed, he rules his Terroristan with an iron fist. The New York Times has branded him as “the latest Pol Pot of Asia” incarcerating Tamils who even dare to crack a joke about him.

Decisions of life and death – from Rajiv Gandhi to President Ranasinghe Premadasa – issue from him. Indian and Sri Lankan courts have sentenced him for being “in the position of command” (Ms. Arbour) to commit crimes. As he wields total and unquestioned power there is no legal provision, either in international or national laws, to exempt him for all the crimes committed in the name of the LTTE by the LTTE cadres.

At this point the focus shifts from Prabhakaran to Ms. Arbour, the Chief Prosecutor of political criminals. If, as stated by Ms. Arbour, violations of international humanitarian law “could entail individual criminal responsibility under international criminal law, including by those in positions of command” what has she done so far to bring those responsible to book? For instance, she can’t miss Prabhakaran even if she tries to. He stands out as the Himalayan mountain of crimes compared to the other anthills in the same category. If she is serious about protecting human rights in Sri Lanka she has to begin with Prabhakaran. This is obvious even to those who do not have a law degree. So why is Ms. Arbour fighting shy about naming, shaming and prosecuting Prabhakaran? She is empowered with the necessary legal force to deal exactly with criminals like Prabhakaran. She will also have the international baking. So is her failure to take the next logical step a reflection of her competency? Should she not bear total responsibility for her failure so far to take the legal measures available to her to indict Prabhakaran? Having failed in her responsibilities to prosecute the world’s deadliest political criminal for decades why is she now issuing vague threats aimed at all and sundry without specifically targeting the prime offender of human rights in Sri Lanka?

As a distinguished professor of law and a judge of the Supreme Court of Canada she should know that justice delayed is justice denied. All these years she has never threatened or taken meaningful action against Prabhakaran who continue to this day to commit one of the gravest of war crimes: abducting children and forcing them to fight in his brutal war. Why is she so backward in coming forward to fulfill her moral and legal duties? How can she abandon her responsibilities to the Tamil children who cannot go to school, or even live in the homes of their Tamil parents, for fear of being abducted forcibly by Prabhakaran’s terror cadres to fight in a needless war?

She is known for brushing aside facts which are unpalatable to her. She is known to be very selective in picking facts, figures and issues that are favoured by her. At a press conference in Colombo she brushed aside questions that were embarrassing. Of course, it must be admitted that given the gross disregard for human rights by numerous regimes and armed groups, including her own country Canada (example: treatment of the indigenous peoples of Canada), her task is not easy. It is certainly not possible for her take on the whole world. But she has the capacity and the duty to confront unrepentant and notorious recidivists like Prabhakaran. Why hasn’t she done so? What is holding her back? Whom is she protecting -- the Tamil children or Prabhakaran? He has been an incorrigible offender. His repeated crimes have provided many opportunities to take him to Hague. For instance, UN Human Rights Commission could have done it in the 90s when Prabhakaran reneged on the agreement with the UN not to recruit children. But this Commission has allowed him to get away with this war crime for decades. Why?

Turning a blind eye to Prabhakaran’s crimes against humanity and war crimes is an unpardonable dereliction of her sacred duty to protect helpless Tamil children and Tamil parents. Besides, had she taken timely action and put Prabhakaran in the dock she could have helped to cut short this futile war by years. But she sat on her French-Canadian bottom doing sweet nothing. Considering her responsibilities to the victims of Prabhakaran, is it wrong then to accuse her of dereliction of duty? Perhaps even a complicit partner in the crimes of Prabhakaran?

She may have all the glitter of academic qualifications and legal attainments. But what are they worth if she cannot act on the plain evidence that is there under her judicial nose? She had known the crimes committed in the Pol Potist regime in the Vanni and she had done nothing about it. The colossal and inhumane crimes of the 20th century were committed with the full knowledge of the Western powers and their moralizing busy bodies. In most instances they, in fact, compounded these crimes by pretending that no such crimes exist. For instance, they refused to believe what was going on in Hitler’s Germany and when the Jews were pleading for help the Western powers went into a state of catatonic denial.

To their everlasting shame, they stepped in only when Hitler threatened their interests. Earlier the persecution of Jews and other victims of Nazi fascism were dismissed or ignored as inconvenient truths that do not concern them. By the time they established the Nuremberg trial it was too late. This post-mortem was to prove how morally superior they were, not to admit their guilt in not doing what they ought to have done at the time it was required. Ms. Arbour is going down that track. Her legal pieties have not brought any relief to the victims of Prabhakaran’s fascist regime. T.S. Eliot’s line in Gerontion, “After such knowledge (in her possession), what forgiveness?” applies directly to Ms. Arbour.

Her job as the prosecutor is to act on the evidence without bias. And the evidence against Prabhakaran has been mounting daily with Ms. Arbour sleeping on the job. Is this what she’s paid for? When the policewoman is sleeping at the gate guarding the premises of human rights doesn’t it make the job easier for criminals like Prabhakaran get away with impunity?

Despite her transparent failure to fulfill her duties, she has been noisily running around insisting that a branch of her UN office should be established to monitor human rights in Sri Lanka. Why should the Sri Lankans trust her to do a fair and objective job of work when she has failed to lift a finger against the prime offender of human rights violations in Sri Lanka – Prabhakaran? What good can her office do in Colombo which she can’t do from her office in Geneva?

Before she steps in to play any interventionist role in protecting Sri Lankan human rights she has to prove her bona fides first by acting decisively to put an end to the war crimes and the crimes against humanity committed by Prabhakaran. Any other side issue taken up by her in the interim would not enhance her stature as credible defender of human rights. If she side-steps this central issue she would be confirming that she is no better than the other interventionists like Alan Rock (her pro-Tiger compatriot), John Holmes, or Gareth Evans who stepped in with their hidden agendas to tie the hands of the Sri Lankan government whilst giving full rein to Prabhakaran to ride rough shod over human rights.

The latest strategy, manipulated by the NGOs and INGOs funded by foreign powers, is pretty obvious: Alan Rock, John Holmes and Gareth Evans, the big preachers of the West propounding their holier-than-thou political pieties, have been visiting Sri Lanka to dictate how the native should behave to appease the foreign gods disbursing aid. Ms. Arbour is the latest to join this bandwagon. Gareth Evans, for instance, came in waving the R2P with the sole intention of threatening the Sri Lankan government with the reserve power held by the ex-colonial masters to intervene if the natives do not act according to the commands of the neo-colonialists.

Ms. Arbour is now aiming at the same Sri Lankan target from a different angle, pointing out “the criminal responsibility under international criminal law, including by those in positions of command.” It is a catch-all statement without being specific. If she is genuinely intent on enforcing international humanitarian law then she hs to be precise and initiate action against Prabhakaran, as the first move. Or could it be that she is making a broad statement aiming at others “in positions of command”, leaving out Prabhakaran?

On the available mass of evidence she has no option but to try Prabhakaran. The bombs planted and triggered by the Tigers are going off again in Sri Lanka, killing unarmed civilians. No one needs to point out to her the commander who is behind it all. Her duty now is not to debate the politics of the Ceasefire Agreement. Sri Lanka has gone past that. Her duty is to work within her legal parameters and go for the commander behind it. Her competency as protector of human rights, particularly the rights of the helpless Tamil children in Sri Lanka, depends on her next move.

The eyes of the children of Sri Lanka are on you, Madame Arbour. Are you awake or asleep?

- Asian Tribune -

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