Army ‘not above law, not below law,’ but…

| by N Sathiya Moorthy
( December 2, 2012, Chennai, Sri Lanka Guardian) Announcing the filing of defamation suits against two Tamil newspapers published from Jaffna, an Army statement had this to say – and rightly so: “Just as much the Army is not above the law, we are not below the law either, and we will fight vigorously to protect the good name of the Army and our heroic soldiers.”

The sudden turn-about of and on armed forces commander, Sarath Fonseka, did not help matters. Earlier, he had taken all credit for war-time actions against the errant soldier. That could not have been allowed to stick – or, stick out.

The court suits are for damages to the tune of SLR 100 million each. They stand in the name of Army Chief, Lt. Gen. Jagath Jayasuriya. If the Army statement is to be believed, there could well be more of the same to come. The office of the Director (Legal) at the Army HQ and Gen. Jayasuriya would have their hands full – and their pens always filled with ink.
Approaching the Judiciary for redress is a better way to address the legitimate concerns of the Army in matters of unsubstantiated allegations and rumour-mongering than other methods often associated with the armed forces. As the Army statement said, “even if a suicide takes place in Jaffna, the two newspapers make it a point to refer to the existence of an Army Camp in the area, thus casting aspersions on the Army in an unnecessary manner.”
These are matters for the courts to adjudicate, or for the civil society to agitate. There cannot be a half-way house, where motivated sections of the media seek to replace either or both. Or, at least that is the Army’s allegation at present. The media seeking to replace the civil society, and polity, is worse than what is euphemistically called the ‘trial by the media’.
It is likely that the Army and the Government will be blamed for using law to browbeat adversaries, off battle-field. It is also not unusual for friends of the media and the voices of democracy to argue that high-cost court cases could silence criticism for good. Judicial verdicts likewise could put media houses out of business – and possibly into red. Or, that would be the argument. This is not peculiar to Sri Lanka. It is not certainly peculiar to the aftermath of the ethnic war and violence, where the armed forces were/are engaged in rehabilitation and reconstruction. The international community that had been sceptical about it has since least acknowledged constructive role played by the armed forces in the reconstruction work in the war-ravaged North and the East.
Other arguments apart, there is justification in the Government’s query if reconstruction could have been fast-tracked without involving the armed forces as planners, executors and manual labour. If rehabilitation, as against reconstruction, is not complete, or satisfactory, the armed forces cannot be blamed. It is an administrative decision by the Government, for which the Army may have provided inputs.
The presence of the armed forces in the neighbourhood provides for a sense of security in civilian habitations located near cantonments. But too much of armed forces’ presence can be intimidating, if not worse. Too much of interaction, even in the best of times, could only generate a love-hate relationship, nothing better. This again is a universal phenomenon, and both sides should acknowledge the same.
Community coordination
In the peculiar circumstances in which the armed forces are deployed and employed in the North and the East, the long history of reportage and records, rumour-mongering and speculation have the tendency to devils even where ‘grease devils’ may not exist. Yet, the Army could think in terms of setting up coordination committees with community leaders’ participation and have internal mechanisms to look into complaints of general and particular nature that may flow through those panels and redress them.
Every time the international community complained about the armed forces’ excesses at the height of ‘Eelam War IV’, the Government would refer to the 7000-plus high ‘court martial trials’ that had been conducted during the period, on specific complaints against individual soldiers.
The sudden turn-about of and on armed forces commander, Sarath Fonseka, did not help matters. Earlier, he had taken all credit for war-time actions against the errant soldier. That could not have been allowed to stick – or, stick out.
Yet, when specifics took a generalised form, and high numbers of civilian war casualties from among the Tamil community began to be flagged, the issues changed course. The Government may have been put on the defensive, and it ended up having neither the time, nor the inclination for anything but to ‘protect’ the armed forces from the international community.
UN-ilateral reports, or what?
The Government may be justified in complaining about the “exaggerated civilian casualty figure during the last stages of the terrorist conflict”, as contained in UN reports since the conclusion of ‘Eelam War IV’. Taking the occasion offered by the leakage and subsequent presentation of the Petrie Report to UN Secretary-General, the External Affairs Ministry has also taken exception to the “allegation of Government shelling into civilian concentrations, the allegation relating to the Government deliberately restricting food and medicine to the North and the repeated characterisation of the welfare villages without any basis as military-run internment camps”.
As the statement rightly points out, be it the Petrie Report now, or the Darusman Report earlier, both were publicised as the internal working-papers of the UN system for the Secretary-General’s personal reference. Both got leaked promptly – and even before they were presented to the Secretary-General.
It is sad to note that even after the experience with the Darusman Report the UN administration did not seek, or bother to ensure that there was no repeat of the same in the case of the Petrie Report. In this case, even sections blacked out before the Report’s publication were in the leaked version. Which one is official, then?
Is it that someone internally had pre-judged Secretary-General Ban Ki-moon? Or, did he or she – or, they – wanted to build up additional pressure on the Secretary-General even before he got to see the Reports? Who were/are they? Why do they continue to have access?
It is not always that leaks of the kind have occurred in the UN system. The repeated nature of the leaks would indicate that independent of the cause and case, there definitely is a section within the UN administrative set-up that has its motives to harass and embarrass Sri Lanka. Or, is selective subterfuge become the part of the UN scheme? Something is really rotten in Ban’s kingdom.
Be it the UN Reports, or those drawn up by INGOs on the last stages of ‘Eelam War IV’, there is little acknowledgement of the LTTE’s role and contribution. There is also nothing about the studied silence, if not complicity of sections of the Tamil society, including the Diaspora, or their host-nations, whose politicians have seen for long an existing and emerging constituency nearer home.
Not only are such reports one-sided, they have seldom cited the Sri Lankan Government version. Where the Government was unwilling to join issue, there were/are knowledgeable persons outside the Government who have been speaking out openly, with clarity and substance, data and facts. Some NGOs have also launched campaigns in third countries as part of their perceived sense of ‘advocacy’.
This goes way beyond their altruist sense of rights of the individual, including to life and dignity, and the duties and obligations of the State. If their concerns for human rights were sincere and serious, that part of the charity should have begun at home. The Iraq Wars and the Afghan War in our times would outlive them all to haunt national consciences, years and decades later.
‘Zero-casualty’ policy
It is not enough that justice is done. It should also be seem to have been done. This holds as much true of the Government and the armed forces as of the international community, the UN included. There is thus a need for both sides – and all stakeholders to the ethnic issue – to look as much inside as they have been looking outside, for succour and support.
In criticising the UN for coming up with “exaggerated civilian casualty figure”, the Government statement, possibly for the first time, may have acknowledged the existence of civilian casualty. On earlier occasions, when people identified with the Government and have had long association with civilian work on the ground had mentioned figures, they were scoffed at from within.
The External Affairs Ministry statement also flies on the face of earlier Government claims of a ‘zero-civilian casualty’ war. It is one thing for policy, another thing to be able to implement on the ground. As part of the Government’s commitment at the UNHRC, the armed forces have been tasked to look into allegations of the nature. It is one thing for the Government to contest the claims of the international community, another thing to argue that they were not civilians but LTTE cadres. The Government has not acknowledged the plausible and the acceptable.
The Government and the armed forces should simultaneously look at the possible outcome of the court cases against newspapers initiated by the Army. If the verdict were to go against the Army, does it flow that the Government would put in place mechanisms to rectify them? Or, would it go even a step further and farther, to pull as much of the armed forces from civilian neighbourhoods as is possible – and as a matter of policy?
(The writer is Director and Senior Fellow, Chennai Chapter of the Observer Research Foundation, the multi-disciplinary Indian public-policy think-tank, headquartered in New Delhi. email:

Author: Sri Lanka Guardian

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