Cry, the Beloved Country

Thousands have disappeared due to repressive regimes and despite this being against international conventions, there has been little interest by governments to track them, leaving families grieving.

By Col R Hariharan | India Legal | January 26, 2020

https://www.indialegallive.com/top-news-of-the-day/news/cry-beloved-country-2-89070

Sri Lanka has one of the world’s highest numbers of enforced disappearances, with a huge backlog from the late 1980s. In 2016, former President Chandrika Kumaratunga while heading the Office for National Unity and Reconciliation had told reporters that various commissions since 1994 had documented 65,000 people were missing or “not found to be dead”. According to the Office on Missing Persons, set up by the government in 2018, up to 20,000 people could be missing since 1983.

Enforced disappearances are not unique to Lanka. Over the years, these  have been documented in 34 countries, including the US, Russia, China and in South Asia (India, Bangladesh, Nepal, Pakistan and Lanka). The most notorious of them all was Spain. Enforced disappearances here took place between the period of the Spanish civil war and General Franco’s dictatorship (1939 and 1975) when about 1,14,226 people “disappeared,” according to a UN report.

Cold War priorities of the US in support of military rulers also resulted in enforced disappearances in Latin America. During the “Dirty War” of Argentina’s military regime from 1976-83 against leftist and Peronist opposition, between 9,000 and 30,000 people “disappeared”. Disappearances in Colombia (around 20,000), Chile (2,279) and Guatemala (40,000-50,000 in civil war) are part of the dark history of Latin America.

The US global war on jihadi terror, unleashed after Al Qaeda’s terrorist attacks on September 11, 2001, led to the coining of a new term– “extraordinary rendition”. This is the illegal transfer of a detainee to the custody of a foreign government for detention and interrogation. The CIA launched a secret extraordinary rendition and detention programme worldwide with the cooperation of over a dozen governments.

According to Open Society Foundations’ Justice Initiative report, by 2013, at least 136 persons were “extraordinarily rendered” by the CIA. At least 54 governments were reported to have participated in the programme, giving it unofficial international legitimacy. The US Justice Department authorised the CIA to use what President George W Bush called “enhanced interrogation techniques”, a euphemism for the use of torture duringinterrogation.

According to Amnesty International’s June 2007 report, at least 39 detainees, who were believed to have been held in secret sites overseas by the US, were missing. The US Department of Defense kept the identity of the detainees held in Guantanamo Bay detention camp secret for four years, releasing an official list of 558 detainees on April 20, 2006 after a court order. Another list published a month later listed 759 individuals who had been held in Guantanamo.

The UN General Assembly had been concerned about enforced disappearances from 1973 onwards as part of concerns over human rights.  It culminated in the framing of the UN General Assembly resolution 47/133 on December 18, 1992 proclaiming the International Convention for the Protection of All Persons from Enforced Disappearances (ICPED). The Convention explains the responsibility of member states on enforced disappearance, not only by defining it but also their responsibility and procedure. Article 1 of ICPED states that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance”.

Article 2 defines enforced disappearance “to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law”.

It is significant that Article 5 explicitly states “the widespread or systematic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law and shall attract the consequences provided for under such applicable international law.”

Enforced disappearance is also recognised as part of the general definition of the 1998 Rome Statute establishing the International Criminal Court.  Equally significant is Article 7 enjoining each State which is party to the Convention to “make the offence of enforced disappearance punishable by appropriate penalties which take into account its extreme seriousness”. This underlines the need for States to specifically recognise it as a criminal act.

Internationally, the right of families to know the truth relating to enforced disappearances or missing persons is recognized in a number of instruments. Article 32 of Protocol I to the Geneva Conventions establishes “the right of families to know the fate of their [disappeared] relative”. Article 24 of the ICPED states: “Each victim has the right to know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person. Each State Party shall take appropriate measures in this regard.”

South Asia has a poor record with regard to accountability for enforced disappearances. The International Commission of Jurists’ August 2017 report–No More Missing Persons’ Criminalisation of Enforced Disappearance in South Asia–provides an analysis of how not only in Sri Lanka, but in India, Bangladesh, Nepal and Pakistan, “enforced disappearance has been used against nationalist or separatist groups or in the name of countering terrorism or insurgency”. The report, analysing the criminalisation of the practice under national laws, says the five South Asian states failed in fulfilling their obligations “to ensure acts of enforced disappearance constitute a distinct offence under national law” in their domestic legislation.

However, ever since the report was published, Sri Lanka has made enforced disappearance a criminal act by enacting ICPED Act No 5 of 2018. However, the moot point is whether the new enactment would be applied to clear the huge backlog of 20,000 plus cases. On the other hand, while India and Pakistan have signed the ICPED, they have not ratified it, nor have they initiated special legislations to recognize enforced disappearance as a distinct criminal offense. Bangladesh and Nepal have neither signed the protocol nor ratified it.

According to the Association of Parents of Disappeared Persons (APDP) in J&K, there have been more than 8,000 cases of enforced and involuntary disappearances between 1989 and 2009. However, the state and central governments say around 4,000 are missing, most of whom are believed to have crossed over to PoK. In January 2017, Chief Minister Mehbooba Mufti told the state assembly that 4,008 persons who were missing from the state were in PoK for arms training.

The Office of the United Nations High Commissioner for Human Rights (OHCHR) released its first report on the human rights situation in J&K and PoK on June 14, 2018. It focused on allegations of serious human rights violations, notably excessive use of force by Indian security forces that led to numerous civilian casualties, arbitrary detention and impunity for human rights violations and human rights abuses by armed groups allegedly supported by Pakistan. The report also found that human rights violations in PoK were more structural in nature; these included restrictions on freedom of expression and freedom of association, institutional discrimination of minority groups and misuse of anti-terror laws to target political opponents and activists. The report made a wide range of recommendations to India and of Pakistan and also urged the Human Rights Council to consider its findings, including the possible establishment of an international commission of inquiry to conduct a comprehensive independent investigation into allegations of human rights violations in Kashmir.

On September 10, 2018, the High Commissioner for Human Rights informed the Human Rights Council during its 39th session that OHCHR report’s findings and recommendations had “not been followed up with meaningful improvements, or even open and serious discussions on how the grave issues raised could be addressed”. The report said neither India nor Pakistan had taken any concrete steps towards providing OHCHR with unconditional access to their respective sides of the Line of Control.

It is obvious that the issue of enforced disappearance is linked to compulsions of realpolitik of a nation, as much as national security. It is directly related to the overall standards of rule of law, political governance and observance of human rights. When states are combating transnational terrorism, it becomes imperative that instruments of power of the State are used in a calibrated fashion to ensure that innocent populations are not affected. There is a need to maintain free flow of information to the public to clear their complaints. This will improve the credibility of the State.

The writer is a military intelligence specialist on South Asia, associated with the Chennai Centre for China Studies and the International Law and Strategic Studies Institute

India-Sri Lanka relations under Gotabaya’s watch

 Colonel R Hariharan

World Focus | Issue 482 | page 5-8 | February 2020| | www.worldfocus.in

Background of Gotabaya’s victory

Sri Lanka has begun a new political chapter in 2020 with the election of Gotabaya Rajapaksa, who served as defence secretary for nearly a decade under his brother, President Mahinda Rajapaksa from 2005 to 2015. His electoral victory was not unexpected as most of the Sri Lankans hail him and his brother as national heroes for eliminating three-decade long Tamil separatist insurgency by the Liberation Tigers of Tamil Eelam (LTTE). The Rajapaksas and their close supporters consider Gotabaya the modern day action hero and affectionately call him the ‘Terminator’.

The newly elected President, speaking to a news agency immediately after the election said it was the Sinhala majority vote “allowed me to win the presidency....I knew that I could win with only the votes of the Sinhala majority. But I asked Tamils and Muslims to be part of my success. Their response was not what I expected. However, I urge them to join me to build one Sri Lanka.” 

Gotabaya won with a majority of 52.25 % votes polled, mostly from Sinhala voters; it was 10.25 % more than his nearest rival -the United National Party (UNP) nominee Sajith Premadasa, who was supported largely by Tamil and Muslim minority. The Terminator’s victory is in sharp contrast to  the 2015 presidential election when Sinhala votes were divided between President Mahinda Rajapaksa, who was seeking a third term, and Maithripala Sirisena, who defeated Rajapaksa with the support of the UNP opposition and huge support from minorities. 

 The Sinhala population, which had voted against Mahinda Rajapaksa in 2015 probably, changed its mind after the Easter Sunday attacks carried out by home-grown National Thowheed Jamath (NTJ) terrorists April 2019. The NTJ influenced by the Islamic State (IS) terrorist agenda targeted three churches and three luxury hotels on Easter Sunday, April 21, 2019 killing 259 people and injuring over 400 others. People lost total faith in the government when inquiry revealed the President Sirisena government had failed to prevent the attacks though it had received information from India two weeks in advance about terrorist plans to carry out the attacks.

The well planned, brazen attack terrified the people, who still remember the horrors of fighting Tamil separatist insurgency brought to an end ten years ago. Inquiry also exposed huge gaps in national security coordination and failure to carryout follow-up action when the state intelligence had reported the NTJ was spreading its extremist ideology for three years.

The fear of terrorism rising again became a rallying call for conservative Sinhala Buddhists, who consider Sri Lanka as the last bastion of Theravada Buddhism, to support Gotabaya in the presidential election. The Rajapaksas had used Sinhala Buddhist nationalism to muster political support. During their rule they had handled Buddhist fringe elements spouting anti-Muslim hate rhetoric and attacks with kid gloves lest it offends Buddhist clergy. So Gotabaya was able to swing Sinhala nationalist votes in his favour.  

The strong affirmation of Sinhala Buddhist support to President Gotabaya Rajapaksa and the consolidation of Sinhala majority backing he received are politically significant. It encourages President Gotabaya to chart his own course of action, rather than be subjected to pulls and pressures of opposition parties playing minority politics. On the international front, it gives him freedom to handle big power pressures and influences, with greater confidence than past presidents.

Soon after assuming office, President Gotabaya went on to implement many ‘doable’ he had promised to deliver during the run up to the election and in his manifesto. These included ordering an inquiry into the Easter Sunday attacks and follow up action taken to fix responsibility.

He had taken welcome measures like steep tax cuts in income tax, removal of all portraits of all politicians including the President and ministers from ministerial offices, cutting down the number of defence personnel assigned on presidential and ministerial security duties and reduction in the number of security vehicles accompanying VIP convoys. These showed the newly elected president’s style was managerial and methodical rather than political.

However, President Gotabaya’s the reputation as an authoritarian figure with disdain for democratic norms and rule of law based on his performance as the defence secretary haunts him. He has repeatedly said that he does not recognize the UN Human Rights Council resolution co-sponsored by Sri Lanka for promoting reconciliation, accountability and human rights for alleged excesses committed during the Eelam War.

Civil society and media fear the freedom of expression they enjoyed during President Sirisena’s rule is in danger of being curtailed under his watch.

This fear was further exacerbated when he announced he would give “due powers” to intelligence officers and provide legal cover to them. During the campaign period, he had also stated that he would release all military personnel under detention if he comes to power has shocked many.  There were 48 armed forces personnel prosecuted in five serious cases of abduction, disappearance, assault and murder. Names of President Gotabaya, members of Rajapaka family and a few other senior officers’ had come up during the course of CID investigations into these cases. These included cases of forced disappearances and murder of well-known journalist Lasantha Wickremetunge, editor of the Sunday Leader and cartoonist Eknaligoda.

Some of the actions of the government after he assumed office were clearly aimed at undoing not only the investigations and prosecutions of criminal cases involving military intelligence and navy personnel mentioned earlier. But there were also actions that showed a vindictive streak. For example a Special Presidential Commission (SPC) has been appointed to probe those responsible for falsely implicating people in murders or related investigation.

This would mean State investigative agencies like the Criminal Investigation Department (CID) and the Financial Crimes Investigation Division (FCID) had been investigating a number of cases involving the Rajapaksas would be investigated.  Even before SPC probe started, Chief Inspector Nishantha de Silva, head of organized crimes division of CID fled the country with his family to Switzerland to seek asylum there.

Inspector de Silva was handling high profile cases involving members of Rajapaksa family. They also included important cases like the killing of Lasantha Wickrematunga. After the police officer fled, a Sri Lankan woman staffer of the Swiss embassy alleged that she was abducted, questioned  and tortured by unknown persons. In the police investigations that followed the woman was arrested for making false allegations.

International relations

President Gotabaya is facing three gritty issues which have defied resolution of successive governments ever since the conclusion of the Eelam War in May 2009. The three issues are: impact of international security dynamics in the Indian Ocean Region, international accountability for alleged Eelam war crimes and resolving the Tamil national question. All the three issues have gained relevance during the last decade in shaping India-Sri Lanka relations as well as Sri Lanka’s relations with the international community.

President Gotabaya’s predecessors have managed the IOR strategic security issue by balancing Sri Lanka’s relations with IOR strategic security’s three principal stakeholders – India, the US and China. However, both Mahinda Rajapaksa and Maithripala Sirisena during their presidency never seriously tried to come to terms with the Tamil national question and Sri Lanka’s accountability for Eelam war crimes.

President Gotabaya will need the understanding of international community particularly India, China the US and in trying to manage these issues. While there is no doubt that they would readily help Sri Lanka in revamping national security structure to prevent Jihadi terror attacks and IOR strategic security, the President may be required to walk the extra mile to find support on the issues of devolution of powers to Tamils and the accountability for war crimes during the Eelam war.

IOR on India-Sri Lanka relations

After the elimination of LTTE in 2009, India-Sri Lanka relations have been progressing smoothly.  However, the dynamic changes in the strategic environment in South Asia and the IOR with the growing Chinese presence in South Asia, have forced both India and Sri Lanka to periodically examine problem areas to avoid any damage to their extremely cordial relations. This is more so ever since, Sri Lanka became an important strategic partner of China’s ambitious Belt and Road Initiative (BRI) –China’s strategic economic infrastructure project promoted since 2013. The Hambantota port, which was financed, developed and now run by the Chinese, has emerged as a vital Chinese strategic asset of the 21st Century Maritime Silk Road (MSR), which forms part of the BRI.

Conscious of this Prime Minister Narendra Modi had been promoting ‘Neighbourhood First’ as the central theme of his foreign policy initiatives ever since he came to power in 2014.  As IOR forms part of the neighborhood, the Indian Prime Minister Modi has promoted SAGAR (Security and Growth for All) maritime initiative for developing the blue economy of the IOR countries. It seeks to create three things:  a climate of trust and transparency, respect for international maritime rules and increase in maritime cooperation with Sri Lanka, Maldives, Mauritius, Seychelles, and Bangladesh.

After winning a majority in the May 2019 general elections, Prime Minister visited the Maldives and Sri Lanka within the first ten days of assuming office for the second term. This indicates that India’s foreign policy priority to build strong relations with its IOR neighbours, particularly with Sri Lanka and Maldives.

After the Eelam war ended in 2009, China has focused on promoting its relations with Sri Lanka as it fits in well in its Indian Ocean strategy. In tandem with the increasing presence of Chinese warships in Indian Ocean, China has created infrastructural assets in Bangladesh, Sri Lanka, Maldives and Pakistan. Sri Lanka now owes China US$ 8 billion for these projects including the Matala airport and Hambantota port. After the US$ 1.6 billion Hambantota port proved an unviable proposition Sri Lanka signed an agreement with the state-owned China  Merchants Ports Holdings Company (CMPort) to barter 85 percent share of Hambantota port for 99 years which agreed to pay US$ 1.12 billion for. India and the US and its allies have has watching with concern China gaining control of Hambantota port as it legitimizes China’s strategic presence within India’s sphere of influence in the Indian Ocean.

Chinese contractors have also built the Colombo Port City project was however, the project costing US$ 1.5 billion is being built on 112 hectares of reclaimed land in Colombo’s scenic Galle Face promenade has now been christened as Colombo International Financial Centre, a self-contained smart city project. However, Indian participation and investment is essential to make them profitable. This is likely to condition the approaches of both Sri Lanka and China to India-Sri Lanka relations. 

China has also gained commercial edge in South Asia with the progress in MSR infrastructure. The China- Sri Lanka free trade agreement (FTA) come through, Sri Lanka’s importance will increase for China as it has a flourishing FTA with India.

It is in this complex environment, India and Sri Lanka relations  will be subject to China’s strategic power play in Sri Lanka apart from India help Sri Lanka in capacity building to manage the Jihadi terrorist threat.

President Gotabaya showed his keenness to improve his relations with India and Prime Minister Narendra Modi in particular, as he had earned the reputation of Sinophile while serving as defence secretary. So he readily accepted  Prime Minister Modi’s invitation to visit New Delhi extended soon after the election result was announced. The Indian prime minister had kept his links with the Rajpaksas open even after the 2015 defeat in the presidential poll. President Gotabaya visited New Delhi on November 29-30, 2019 and  sought India’s support and help to improve national security, combat Islamist terrorism and help economic recovery.

India readily responded with a line of credit of $400 million to meet Sri Lanka’s development needs and $50 to augment its security. It is significant that though PM Modi in a press statement on November 29, expressed the hope that the 13^th Amendment to the Sri Lankan constitution based on the Indo-Sri Lanka accord would be adhered to. However, President Gotabaya later said the 13^th Amendment could not be implemented “against the wishes and feelings of the majority community.”

During his India visit President Gotabaya termed the agreement with China on Hambantota Port as a “mistake” and it should be renegotiated. This must have caused a lot of concern to China. However, after he returned home, he told a press briefing that there was no need to renegotiate the Hambantota agreement but the security aspects would need to be looked into.  Though the Chinese reacted quickly with a statement remind the agreement cannot be renegotiated, the issue probably figured when Chinese Foreign Minister Wang Yi visited Colombo on January 14.

According to President Gotabaya’s office statement the Chinese minister had pledged not to allow “any outside infuences” to interfere with Sri Lanka’s internal matters”, apparently a not so subtle hint at the US which had tried to influence the 2015 election. He promised as a strategic partner “China will standby Sri Lanka’s interests. China stands for the country’s sovereignty, territorial integrity and independence.” The BRI projects issue and China’s support for Sri Lanka’s stand at the UNHRC on accountability for war crime issue also figured in their discussion.

Quick takes on Indo-Pacific security environment

Col R Hariharan | January 1, 2020 |

[Here are my short answers to questions relating to India-China relations and Indo-Pacific strategic security.]

1. What will be the think tank’s view or recommendations on how the Indian government's decision would be regarding BRI?

I can speak only in my personal capacity. There are both positives and negatives about BRI. Positive side: it infuses investment in infrastructure projects in countries starved of investment which will encourage increase business and trade as well as jobs and open up international trade opportunities. 

But there are many negatives. The whole process is opaque. It comes with terms largely dictated by China. Often because credit is available infrastructure projects have been taken up without due diligence about their viability. It increases China's strategic reach which could go beyond the smaller country's ability to manage in times of confrontation. Of course, it would dislocate regional stability as obvious in Indo-Pacific neighborhood.

2. How will the issue of the China Pakistan Economic Corridor(CPEC) passing through the Pakistan occupied Kashmir be resolved? Can it be resolved?

There are three major issues relating to CPEC running through Pakistan Occupied part of Jammu and Kashmir.

a. Pakistan-India standoff for 70 years over Pak claim on Indian Territory. 

b. Pakistan providing sanctuary to terrorists to carry out terror strikes in India and Afghanistan.

c. China-Pakistan strategic connectivity facilitated by CPEC increases joint threat to India.

Unless the two nations (China and Pakistan) decide to resolve the threat potential against India convincingly (will it ever happen?), I don't expect any change in present situation.

3. Recently India had rejected the RCEP, which could have given us a good hold in the Southeast Asian countries. What are the other ways we can counter the theory of string of pearls?

The Regional Comprehensive Economic Partnership (RCEP) is a proposed free trade agreement in the Asia-Pacific region between the ten member states of the Association of Southeast Asian Nations (ASEAN), namely Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam and their five FTA partners namely, Australia, China, Japan, India and New Zealand.

I don't subscribe to the string of pearls (SOP) theory that China's entire strategic outreach is designed to contain India, though the US would like us to believe it. The so-called SOP has happened because China has embarked upon making its ambition to become a global power as per CPC's vision. President Xi Jinping launched BRI in 2013 to fulfill this vision. 

RCEP could also become a vehicle of it and India runs the risk of becoming a dumping ground for other members of RCEP dominated by China. When RCEP’s terms are redrawn, India can take a call on joining it based upon our national interest.

4. With the Sri Lankan government not being pro - Indian, how do you think our strategy or relation be with Sri Lanka, while keeping in mind that the Hambantota port has a possibility of becoming China's military base?

India has never wanted Sri Lanka should be pro Indian; India wants Sri Lanka to be a friendly neighbor in view of  its shared history and culture with India. Under PM Modi's neighborhood first policy, Sri Lanka-India relations now are most cordial than ever before. President Gotabaya Rajapaksa is fully aware of India's concerns about China using Hambantota port for its warships. Actually, when I met President Mahinda Rajapaksa in 2006, he described India as ‘family’ and China as ‘friend’. China knows India’s special relationship with Sri Lanka.

India is the most powerful naval power in Indian Ocean Region (IOR) and its naval reconnaissance planes are maintaining surveillance of all choke points of IOR 24x7. 

Indian navy has functional security arrangements with Sri Lanka navy to coordinate their coastal surveillance. Similarly Singapore, Maldives, Mauritius and Seychelles have security linkages with India. India and France have signed a strategic co-operation agreement which make available French bases in Indian Ocean to India. 

Given this situation, neither China nor Sri Lanka is stupid to turn this it into an existential crisis for India by triggering full-fledged confrontation in IOR.

5. Will the Indo Pacific region policy of India counter balance BRI and help in getting a hold on the Indian Ocean?

I think answers to earlier questions cover most of this aspect except India's emerging participation in the Strategic Quadrilateral of US, India, Japan and Australia. Quad is in nascent stage and it is to improve mutual security cooperation between members in Indo-Pacific, where the presence of PLAN warships has increased. I think Quad in its present form is not to contain BRI, but only a precautionary arrangement to handle the situation if  and when China's belligerence seen in South China Sea, spills over in Indo- Pacific to the detriment of trade and commerce and security interests of Quad members.

6. While the US has started its talks on space warfare, will it become the next chapter of national security and should India think about the same?

Of course, India is already a reckonable power with proven capabilities in space. You must have seen the DRDO float of an India-designed anti- satellite missile in the Republic Day parade on January 26. India has become the fourth nation which has anti-satellite missile capability. That shows the baby steps we are taking in space security. But space warfare has a long way to go before it becomes the "next chapter" of our national security. It still remains only as an appendix to India’s national security matrix.

Caught in a Cleft Stick

While the ICJ ruling pulled up Myanmar’s de facto head, Aung San Suu Kyi, over the genocide of Rohingyas, the fact is that she can’t antagonise the army or the conservative Buddhist population

By Col R Hariharan |Analysis| India Legal | February 2, 2020

https://www.indialegallive.com/analysis/caught-in-a-cleft-stick-86743

Myanmar’s de facto head of state and State Counsellor Aung San Suu Kyi is facing yet another challenge. Already grappling with the complexities of constitutional democracy designed by the Tatmadaw (army), she now has to confront a recent order of the International Court of Justice on the Rohingya genocide issue.

On January 20, the 17-member ICJ panel imposed “provisional measures” on Myanmar, ordering it “to take all measures within its power” to prevent the killing of Rohingya Muslims remaining in Rakhine state under the 1948 Genocide Convention. The Court also asked Myanmar to preserve evidence of Rohingya persecution. It also ordered it to submit a report to the ICJ within four months, with additional reports every six months “until a final decision on the case is rendered by the Court”.

The ICJ’s order is an interim one to meet Gambia’s request for provisional measures “to stop genocidal conduct immediately” against about 6,00,000 Rohingyas remaining in Myanmar.

Myanmar is one of the 150 countries which ratified the Convention on the Prevention and Punishment of the Crime of Genocide which came into force on January 12, 1951. As a signatory to the Convention, it is obligatory for Myanmar to take action, in letter and spirit, against genocide both in times of war and peace.

Article II of the Genocide Convention lists killing, causing serious bodily or mental harm or deliberately inflicting conditions of life calculated to bring serious bodily or mental harm by the military or “any irregular armed units” as falling within the scope of the Convention.

Gambia’s case before the ICJ pertains to the military excesses committed during military operations launched in the wake of Arakan Rohingya Salvation Army (ARSA) insurgents’ attacks on police posts in 2017. The army’s savage reprisals unleashed on the Rohingya population resulted in 7,00,000 of them fleeing the country to seek refuge in Bangladesh.

The ICJ rulings are final and there is no provision for appeal. Although the Court has no mechanism to enforce its orders, Myanmar is obliged to implement it under international law. Many human rights organisations and Rohingya expatriate bodies have hailed the ICJ ruling as a vindication of their allegations of genocide committed against the Rohingyas.

As the BBC put it, Suu Kyi’s appearance before the ICJ hearing in her capacity as foreign minister in December 2019 to defend the Myanmar army’s conduct in 2017 “obliterated any remnants of Aung San Suu Kyi’s international reputation”. In any case, her global image as a “human rights icon” for her unrelenting fight for restoring democracy, took a severe beating when the military carried out its no-holds-barred operations against the Rohingya insurgents.

Speaking at the ICJ, she said the Myanmar defence services “responded” to “an internal conflict started by coordinated and comprehensive armed attacks” in western Rakhine state in August 2017, leading to the exodus of Muslims.

On the eve of the ICJ ruling, Suu Kyi wrote in an op-ed piece in Financial Times: “An informed assessment of Myanmar’s ability to address the issue of violations in Rakhine can only be made if adequate time is given for domestic justice to run its course.” She called upon the international community to respect the country’s judicial system. The war crimes allegedly committed by troops in 2017 will be prosecuted through “our military justice system”. “We need to respect the integrity of these proceedings and refrain from the unreasonable demands that Myanmar’s criminal justice system complete investigations in a third of the time routinely granted to international processes,” she wrote.

The state counsellor said Myanmar was a victim of “unsubstantiated narratives” by the international community, apparently referring to reports by international human rights watchdogs like Amnesty International and Human Rights Watch. She accused them of condemning Myanmar “based on unproven statements without due process of criminal investigation”. The allegations against Myanmar “all rely on a fact-finding mission by the UN Human Rights Council. This is precariously dependent on statements by refugees in camps in Bangladesh”.

She wrote that a fair reading of the report of the Independent Commission of Enquiry (ICOE) on January 20 “would show that this is a real risk in the current international proceedings on events in Rakhine”.

The four-member ICOE was constituted in July 2018 with Ambassador Rosario Manalo, former foreign minister of Philippines, as chairman. It was tasked to investigate allegations of human rights violations and related issues following the terrorist attacks by the ARSA in Rakhine state.

The operative part of the ICOE report said that “war crimes, serious human rights violations and violations of domestic law took place during the security operations between August 25 and September 5, 2017.  Although serious crimes and violations were committed by multiple actors, there are reasonable grounds to believe that members of Myanmar’s security forces were involved”. It further added, “the killing of innocent villagers and destruction of their homes were committed by some members of Myanmar’s security forces through disproportionate use of force during internal armed conflict”.

However, the ICOE held there was “insufficient evidence to argue, much less conclude that the crimes committed were undertaken with the intent to destroy, in whole or in part, a national, ethnical, racial religious group, or with any other requisite mental state for the international crime of genocide”.

Even if Suu Kyi wants to bring to book troops involved in serious crimes against the Rohingyas, there are constitutional limitations. The 2008 constitution legitimised the military’s Presence in the legislature and governance. One-fourth of the seats in Parliament are reserved for the army as also three key ministries—home, defence and border affairs. The army agreed to the creation of an extra-constitutional position of state counsellor (de facto head of state) to accommodate Suu Kyi at the top of the state structure as she was not eligible to be elected president because of her marriage to a foreigner.

So her government seems to have adopted tokenism as the best option. For instance, seven soldiers jailed for 10 years for killing 10 Muslim men and boys in the village of Inn Din were released last November after serving only a year of imprisonment. This was in sharp contrast to two Myanmar journalists who exposed the killings—they spent a longer time in jail.

While western opinion-makers castigated her for defending the “genocidal” actions of the army, it endeared her at home to the armed forces and the conservative Therawada Buddhist population, which has shown strong anti-Muslim and xenophobic sentiments.

During the 2010-15 rule of the pro-army Union Solidarity and Development Party, the Thein Sein government restored media freedom and released most of the political prisoners and constituted the State Human Rights Commission. However, it also saw some of the worst anti-Muslim riots by Buddhist extremist elements, particularly against the Rohingyas in Rakhine state, under the benign watch of law-enforcing agencies controlled by the army. There were as many as five anti-Muslim riots in which 282 people, mostly Rohingya men, women and children, were killed.

The Thein Sein government disenfranchised Muslims prior to the 2015 general election. Although the NLD led by Suu Kyi had enjoyed the support of Muslims, it maintained a studied silence on the issue and did not field any Muslim candidate when it won a thumping majority in the parliamentary poll in 2015.  This showed that Suu Kyi, despite her nationwide popularity, is extremely cautious in handling the Rohingya issue for fear of backlash from the Buddhist population. With a general election due at the end of the year, Suu Kyi is unlikely to embark on any radical action on the Rohingya issue lest it affects the NLD’s poll prospects. In the long term, the Rohingyas’ plight cannot be ameliorated unless their status as citizens of Myanmar is recognised. This would require amending the Burma Citizenship, Law, 1982, to include them among the officially recognised indigenous ethnic groups. As the present list recognises only eight other ethnic groups, a million-plus Rohingyas have been rendered stateless. Unless they are recognised as citizens, it will be difficult to absorb them in the national mainstream.

Both the EU and the US, who generally spearhead human rights campaigns in international forums, have reacted cautiously to the ICJ ruling, perhaps because they understand the constraints under which Suu Kyi is functioning.

The Office of the UN Special Adviser on the Prevention of Genocide (OSAPG) uses an eight-category analysis framework to determine whether there may be a risk of genocide in a given situation. If Myanmar’s justice system strictly goes by OSAPG norms, probably many members of the Tatmadaw will be found guilty of committing genocide against the Rohingyas.

But unless the whole nation wills itself to do justice, it will be a Himalay-an task for Aung San Suu Kyi, despite her national popularity and acceptance by the Tatmadaw, to bring the guilty to book in the near future. So the Roh-ingyas run the risk of joining the long list of victims of unpunished genocides across the world.

However, internationalisation of the Rohingya issue will, hopefully, hasten constitutional reform in Myanmar to free democracy from Tatmadaw fetters. It could also amend citizenship and electoral laws so that stateless persons and minorities enjoy equal rights as citizens of Myanmar.

The writer is a military intelligence specialist on South Asia, associated with the Chennai Centre for China Studies and the International Law and Strategic Studies Institute.  E-mail: haridirect@gmail.com  Blog: https://col.hariharan.info

Sri Lanka Perspectives: January 2020

Col R Hariharan |31-1-2020| South Asia Security Trends, February 2020

www.security-risks.com

Getting ready for the parliamentary poll

President Gotabaya Rajapaksa fresh from victory in the Rajapaksa battle for second coming, took a slew of decisions to fulfill what he promised in the run up to the November 2019 elections. The essence of his agenda was spelled out in his maiden speech in parliament on January 3, 2020. He rewarded the Sinhala Buddhist majority which voted him to power by saying what they wanted; he said “We must always respect the aspirations of the majority of the people. It is only then that the sovereignty of the people will be safeguarded. In accordance with our Constitution, I pledge that during my term of office, I will always defend the unitary status of our country, and protect and nurture the Buddha Sasana whilst safeguarding the rights of all citizens to practice a religion of their choice.”  

The above affirmation, coupled with his reference to the need for electoral reforms to ensure “stability of Parliament and the direct representation of the people” while “preserving the positive characteristics of the proportional representation system” while pleasing his Sinhala constituency must have filled the minority’s cup of woes. He has sent a clear signal that unitary form of government was non-negotiable. This strikes at the root of Tamil minority struggle for greater autonomy. 

They see the consolidation of Sinhala Buddhist votes under the new President voted in to find answers to their fear of resurgence of terrorism, not of the Tamil kind, but a far worse one with external Islamic State terrorist connections. Anti-Muslim paranoia was fanned by Buddhist fringe elements after Easter Sunday attacks last year by home grown Jihadi terrorists took 259 lives. It served Gotabaya to consolidate the Sinhala Buddhist votes in his favour though minority voters supported his opponent Sajith Premadasa.

President Gotabaya’s words of reassurance to the minorities and appeal to them to join hands in nation building did not sound credible with some of his actions and pronouncements.  His loud stand against devolution of powers to the Tamil minority and casual dismissal of the long standing issues of 23,000 missing persons and forced disappearances in the Eelam War showed his approach was ruthless and different from his brother Mahinda’s more politically nuanced actions. 

Though many may find Farhaan Wahab’s super-charged, angry narrative in the Colombo Telegraph on the rise of Sinhala nationalism alarmist, his comment “the majoritarian society that had been in a long search for a strong Sinhala man found its Dutugemunu over the demise of minorities political aspirations” would resonate with the fears of many minority leaders on the rise of Gotabaya Rajapaksa to the top. While physically ethnic divide may not be there in the island state, mentally it would firm further in when the country goes to elect its new parliament in December 2020.

President Gotabaya brings to his appointment skill sets and wide variety of applied experience never before seen in a Sri Lanka president. His impressive resume includes service as an army officer with combat experience, an expatriate in the US with experience as information technologist and most importantly, decade-long service as a bureaucrat who strategized the Eelam War to a total success.  His assets are his self-confidence, goal clarity, superior strategic skills and ability to leverage his knowledge of technology in problem solving and readiness to ruthlessly act to achieve his goals.  Many of his objectives like abolition of the 19^th Amendment to the constitution to restore full powers to the executive president and reform of electoral system would require two thirds majority in parliament.

So we can expect him to focus on getting two thirds majority success for the SLPP-led coalition in the parliament election. To achieve this he will have to ensure he retains the Sinhala majority support and keep the opposition parties divided.

Even before the call of the parliament election is made, the leadership of the main opposition party United National Party (UNP) is divided over the question of coming to terms with President Gotabaya. The inner party power struggle between the old guard and the younger generation is debilitating not only the party’s strength but also dividing its coalition partners. The old guard is championing Ranil Wickremesinghe, seasoned leader to continue; it is also manoeuvring to keep out Sajith Premadasa from the leadership of the party. 

While Ranil’s followers want status quo, Sajith’s supporters want the party to change its style and increase its relevance to younger generation and rural masses. Sajith is also not forgetting to appeal to the Buddhist nationalist segment. The UNP leadership struggle is taking toll on its coalition which is divided.  That includes the support of minority political parties who have limited option but to support either of the faction. 

While the main opposition is trying to find its feet, President Gotabaya has undertaken structural changes in national security and intelligence. In his parliamentary speech he listed steps being taken to strengthen the national security apparatus. “Talented officers have been given appropriate responsibilities again. We have taken steps to ensure proper coordination between the Armed Forces and the Police, who are collectively responsible for maintaining national security. The network of national intelligence agencies has been reorganized and strengthened.” This would reassure the people shaken up by the administrative complacency that led to the Easter Sunday attacks.

But the President is not only trying to rectify national security aberrations but also contemplating structural measures that would eliminate bureaucratic blocks and administrative corruption that would ease common man’s life. It would not stop at offering freebies or tax cuts which he offered immediately after he was sworn in. President Gotabaya has spoken of creating central data bases to eliminate bureaucratic road blocks and corruption in public service, which had been the bane of Sri Lanka.

President Gotabaya is no go for minority voter because he has alienated them. Muslim political leaders, more than Tamil leaders, have a record of changing their coalition affiliations if due incentives are offered. This was demonstrated during President Mahinda Rajapaksa’s rule. After the anti-Muslim backlash of Easter Sunday blast, this is going to be a difficult exercise, which would probably be attempted after the parliamentary election.

Tamil minority is a different lot altogether. Perhaps, Sri Lanka president can usefully engage one of the India big data companies which advise Tamil Nadu political parties on how to turn his fortune with Tamil minority voter.

Col R Hariharan, a retired MI officer, served as the head of Intelligence of the Indian Peace Keeping Force in Sri Lanka from 1987 to 90. He is associated with the Chennai Centre for China Studies, South Asia Analysis Group and the International Law and Strategic Analysis. Email: haridirect@gmail.com Blog:: https://col.hariharan.info