The following is the text of the lecture by the journalist Marwaan Macan-Markar during a webinar recently organized by LAWASIA in Sydney on the subject of “Rule of Law, Justice and Democratic Rights in Sri Lanka”.
It should be clear to anyone who followed the headlines from Sri Lanka in March that the country continued its downward spiral on the global affairs stage. The yardstick that shows this trend is the number of votes the government was able to garner on a resolution during the human rights sessions in Geneva. Only 11 of the 47 members of the United Nations Human Rights Council believed Sri Lanka’s case and voted for it this year.
This is quite a diplomatic crash, and it raises questions about whether the country can plunge any deeper at the HRC. To understand the situation in Sri Lanka, one has to look back over a decade, to 2009, the year in which the almost 30-year-old ethnic conflict came to a bloody end. That year, against great diplomatic adversity, Sri Lanka convinced 29 countries to support his case.
But, as we now know, this high watermark was to be short-lived, as the resolutions in the years that followed showed. In 2012 international support fell by half to 15 votes. As of 2013, only 13 countries stood by Sri Lanka – suggesting other nations are supporting the Sri Lankan cause. By 2014, when then President Mahinda Rajapaksa rounded off his second term, international support at the HRC had dropped to 12.
This Sri Lankan Geneva scorecard is open to many interpretations. As a journalist, it was helpful for me to assess the development of Sri Lanka’s post-war history and its international perception. It also served as an entry point to understanding what the national sentiment is like on the human rights front and where the political class sits on issues such as justice and reconciliation. This has been reflected with great passion in the debates in the Lankan media around the human rights session. At that moment, in the face of the ideology of the government of the time, ultra-nationalist sentiments prevail.
However, when you step back from the noise, you can see elements of a political ritual taking shape. You can even split it into the time before Geneva and the time after Geneva. Over time, colorful expressions have emerged to give the Geneva discussions a unique vocabulary. Some of them come from local situations, others from the world of literature. A well-known Sri Lankan media personality repeatedly referred to the recent Geneva meetings as “the ideas of March” in the months that followed. There was an obvious sense of premonition with every one of his deliveries.
The feelings among ordinary people are sometimes equal to the task. They enriched the discussion with their colorful attitudes. So I picked up this particular phrase about the HRC: “It’s like the sword of Damocles hanging over the Sri Lankan state.”
Some of these thoughts were shared in conversations I had in Colombo over a story I wrote about Geneva 2021 late last year. And the impression I got after such a meeting was that the annual human rights meetings have become a new constant in current Sri Lankan political life, and it could easily prove to be a useful barometer for measuring political winds in after the national elections Qualify Lanka in second place.
But let me get on this point because the Geneva sessions have another dimension that is equally relevant to those of us who are following Sri Lanka’s political turns. They provide guidelines to keep track of where the country is in its obligations to uphold the rule of law, justice and democratic rights, which is the topic of today’s webinar.
For observers of Lankan affairs, the text from Geneva opened up new storylines. One that journalists should be concerned with is the language of a process of accountability for the achievement of post-war justice. The relevant section states that these new international efforts will be mobilized to “collect, analyze and retain evidence of grave human rights violations and international crimes in Sri Lanka” for future law enforcement purposes.
This should be awkward read for those involved in war crimes or human rights abuses. Some of the names involved in such abuses are already in the public domain. It is very likely that now that an evidence-gathering mechanism is taking shape, more names will be added. Gradually, what did not seem possible in Sri Lanka because the governments were unwilling to do so or the country’s judicial process was not able, as human rights experts say, to take shape in foreign realms.
The headline-grabbing reports, however, are likely to emerge from other passages of the Geneva text. It is the section that encourages countries to consider hearing cases against the alleged war criminals in Sri Lanka in their respective courts. These provisions have pushed Sri Lanka to join the ranks of nations with brutal aftermath of political oppression and ethnic conflict in Latin America, Africa and Asia.
And it might be worth noting that some governments from these countries have had to raise their diplomatic capital to deal with their own citizens who have been accused of war crimes and who have been attacked by human rights defenders and lawyers. The latter wanted the former to be tried in foreign courts according to the principle of universal jurisdiction. Given Sri Lanka’s sad voting results in March, this will surely be yet another test of the country’s diplomatic reach.
One such twist in Sri Lanka’s human rights narrative for those who have committed war crimes is due to this: From now on, they may need to think seriously about which foreign country to travel to next. It will no longer go on as usual. There is a growing list of examples to help illustrate cases of serial human rights abusers who have been abroad as a free man – yes, the perpetrators are all men – arrested for war crimes or serious human rights abuses.
The name of the unscrupulous and manipulative Indonesian dictator Suharto comes to mind among the early examples in this context. During his autocratic rule of 32 years, he was on such a wanted list because of his oppression. The terror that he unleashed led, according to conservative estimates, to massacres of up to 500,000 citizens, even half a million people. After losing power in 1998 and weakening his health, the former strongman of Southeast Asia feared traveling to European countries for medical care. According to human rights groups, the reason was that he feared being arrested in a strange city. So, yes, he stayed home and avoided becoming an international story.
But the one who sparked a media storm, and someone to remember given the subject I focused on today, is the authoritative and arrogant Augusto Pinochet. For those unfamiliar with the name, he was the former dictator of Chile. He was arrested in London after a UK court accepted a case against him by a Spanish lawyer. The moment was celebrated by human rights defenders for the precedent set by the UK courts: ending the concept of sovereign immunity that had given war criminals and tyrants the freedom to travel without fear of arrest. It was the arrival of universal jurisdiction as yet another means to investigate the world’s worst infringers. As a result, the world received the “Pinochet Precedent”.
In fact, I first came across the name Ricardo Miguel Cavallo just a few years later. I was working in Mexico at the time and had been assigned to deal with human rights. The beat contained stories from men who were involved in the earlier oppressive regimes of Latin America. Some of them had fled to Mexico like Cavallo, others to other “safe” countries.
Cavallo had previously been a military officer in Argentina when it was ruled by a junta during its “dirty war” years. He’d later arrived in Mexico and remained under the radar as a free man for years, working on Mexico’s national motor vehicle registry. But then his cover-up ended. He was arrested in the Caribbean coastal town of Cancun. The “Pinochet precedent” had finally caught up with him. Yes, he was charged on that principle, reiterating that the idea of universal jurisdiction was spreading across countries.
The previous speaker only reminded us of where the pursuit of universal justice has progressed since then. The Magnitsky Law, which is becoming a Magnitstky movement, now has 31 countries that have signed and amended their laws, he said. This enables these countries to target bank accounts and financial transactions – even credit cards – of human rights abusers.
Stories about such offenders make for a compelling read. They will continue to be informed as they help advance the cause of justice and accountability. The likelihood of Sri Lankan names appearing on this list has increased after the government’s diplomatic debacle in Geneva. And if that happens, those of us who are observers and reporters of the political life of the country will have to pursue new areas of investigation.
Marwaan Macan-Markar is an Asia regional correspondent for Nikkei Asia, a Tokyo-based publication. It covers mainland Southeast Asia and lower South Asia and divides its time between Thailand and Sri Lanka. He was the former editor of The Sunday Leader, a Sri Lankan weekly magazine whose publication has been discontinued.