Time for Action on Sri Lanka War Crimes

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On October 31, UN Secretary-General Ban Ki-moon and International Committee of the Red Cross President Peter Maurer jointly warned the international community about the impact of current conflicts on civilians, and appealed for urgent and concrete actions, including unhindered access and protection for humanitarian personnel, facilities and supplies, internally displaced people and refugees, and the end of the use of heavy weapons in populated areas. The two also called for condemnation and effective investigations to hold the perpetrators accountable. Especially poignant was Ban’s comment. “In the face of blatant inhumanity, the world has responded with disturbing paralysis. This flouts the very raison d’être of the UN.”

The joint warning is reminiscent of efforts after the Rwandan genocide in 1994, when the UN and the Red Cross adopted a series of measures to protect civilians and agreed on the “Responsibility to Protect” policy. That protective system has since worked in a number of cases of mass atrocities against vulnerable ethnic and religious minorities, at least in limiting violence against civilians and in bringing the principal perpetrators to justice, in places including Rwanda, Bosnia, Kosovo and Darfur.

Sri Lanka: A Failure of Protection and Accountability

Tragically, in Sri Lanka these protections, including those under the UN Charter, have virtually collapsed. Indeed there is authoritative evidence, principally in three UN reports starting from 2011 that horrific crimes were committed over many months by the Sri Lankan government and the separatist LTTE, with the international community remaining largely silent about the Sri Lankan government’s ongoing violations, not only during the war but also after it ended in May 2009.

The latest UN report was in September 2015, and was released by the Office of the UN High Commissioner for Human Rights (OHCHR) which investigated alleged violations of international human rights and humanitarian law.

The OHCHR has conveniently provided summary factsheets, offering an overview of the investigation into alleged war crimes and crimes against humanity during and after the war. These encompassed the holding of civilians as hostages by the LTTE and forced conscription, including of children, as well as a wide range of other crimes allegedly committed mostly by Sri Lankan security forces and paramilitaries, including systematic and widespread use of extremely brutal torture and sexual abuse, forced disappearances, and unlawful killings, including “emblematic cases” that are nearly 10 years old.

Most damning were the crimes allegedly committed during the war’s last phase and aftermath, including the systematic government shelling of every hospital in “no fire zones” and even attacks on UN humanitarian facilities and the denial of humanitarian assistance, followed by intensified use by security forces of torture and sexual abuse, forced disappearances, and the unlawful killings of LTTE cadres and Tamil civilians who had surrendered to the army. The report estimated that nearly 40,000 civilians were killed during the war’s final phase and aftermath.

In fact, the alleged crimes had been extensively reported years earlier in two UN reports: the Report of UN Expert Panel on Accountability in April 2011 and the UN’s Internal Review of the UN’s Actions in Sri Lanka (Petrie report) in November 2012. They were also covered in a British Channel Four video documentary called Sri Lanka’s Killing Fields. All called on the UN secretary general to immediately establish an international investigation,

The Petrie report went further and confirmed that the UN had had real-time information, including from satellites, about ongoing alleged crimes during the war and its aftermath, but had withheld information on the Sri Lankan government’s violations even from the Security Council during internal briefings. As a result, the Security Council did not meet on ongoing crimes.

Nor has the Security Council ever met on Sri Lanka, even though the postwar human rights situation continued to deteriorate – as documented in successive U.S.-sponsored resolutions on Sri Lanka and reports by the UN High Commissioner since 2012, and in the latest UN report – in violation of war-end commitments given by the Sri Lankan government directly to the UN secretary-general.

In 2013, the UN secretary-general accepted Petri’s conclusion of grave “systemic UN failure” and announced a new, global and proactive UN “Rights up Front” policy to protect civilians. At the same time, Ban placed the primary blame on “Member States (who) did not provide the United Nations with support to meet the tasks that they themselves had set.”

In March 2014, under U.S. leadership, the UN Human Rights Council called for an international investigation by the Office of the UN High Commissioner, and in September2014, the State Department too acknowledged that the international community had failed to prevent atrocities against civilians in Sri Lanka and several other countries and that if the international community had acted earlier and more appropriately tens of thousands of lives could have been saved and “the future of whole ethnic groups ,states, societies and indeed the world would have been transformed for the better.”

A Way Forward

The above was the backdrop to the U.S.-sponsored report by the OHCHR in September 2015 and the important step of a consensus resolution approved on October1 with Sri Lanka as a co-sponsor.

In his statement to UNHRC, the high commissioner affirmed the report’s conclusion that “Sri Lanka’s criminal justice system is currently not equipped to conduct an independent and credible investigation” and its recommendation for “the establishment of an ad hoc hybrid special court, integrating international judges, prosecutors, lawyers and investigators, mandated to try notable war crimes and crimes against humanity, with its own independent investigative and prosecuting organ, defense office and witness and victims protection program.”

Although the Resolution fell short of the high commissioner’s central recommendation, opting again for a “domestic judicial process,” it did explicitly “encourage” the Sri Lankan government to implement the specific recommendations that were incorporated in the approved resolution.

Among them were international participation, changes to domestic law needed to empower foreign participation and to handle crimes under international law, and reforms to the security system, including the repeal of the draconian Anti-Terrorism Law, ensuring the protection of victims and witnesses and curbing the related massive and stifling military presence in the country’s northeast. It also called for an end to the failed Commission on Disappearances, and for all stakeholders, especially victims, survivors, and civic and human rights organizations, to be consulted by the government.

However, key commitments have barely been implemented, as reported, for example, by a UN Mission on Disappearances in November.

Even more problematic was the public statement made by the Sri Lankan prime minister immediately after agreeing to co-sponsor the resolution, which raised serious questions as to whether victims would be consulted, whether the new court would have the necessary jurisdiction, especially in regard to alleged crimes by the military, whether foreign participation would happen, and whether the promised new laws would be passed. A central question is the intended role of the powerful “Compassionate Council” chosen by religious leaders, which is not mentioned in the Resolution, with regard to allegations against the military. The president too has made clear that the government’s priority is to protect the military.

In fact, it is not even clear whether or how the evidence gathered by OHCHR on alleged international crimes will be used, especially given the continuing overwhelming risks facing victims, witnesses and civic organizations.

Conclusion

The current year-old government of Sri Lanka is a vast improvement on its abysmal predecessor. However, there are already serious questions about its commitment, even as a co-sponsor, to implementing the UNHRC resolution, just as the UN high commissioner has warned.

The Obama administration has been centrally involved in Sri Lanka over many years and was also the prime architect of the UNHRC Resolution. It now has a heavy responsibility to ensure that Sri Lanka actually implements the resolution fully, credibly, and in a timely fashion so that “the rights of victims to truth, justice, compensation and non-recurrence” are finally realized and the principal perpetrators on both sides, including the military, are brought to justice, paving the way for true reconciliation. In this process, close and independent monitoring by the Office UN High Commissioner will be critical.

The same would apply to other UNHRC Members who co-sponsored or supported the consensus resolution, especially the world’s democracies. It would apply even more to the UN secretary general and Red Cross following on their “joint warning.”

Sadly, as pointed out by Taylor Dibbert recently in The Diplomat, there is rising cause to doubt whether the Obama administration will exert the needed pressure on Sri Lanka.

A second failure by the Obama administration in Sri Lanka would of course be catastrophic for the victims and their families. But it would be equally devastating for the integrity of international human rights and humanitarian law and the UN Charter, and for U.S. credibility.

Sarava Kanesa Thasan recently published “Geneva Report: Role of the UN and International Community in Sri Lanka” in The Island.

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