The much awaited UN commission’s report released on 17 September by the HRC commissioner is a mixed bag of hopes and failings for the Sri Lankan Tamils. Without doubt, the report has exposed the details of various crimes, hitherto brazenly concealed and denied by the Sri Lankan rulers including the LTTE’s crimes. The highlights of the most serious crimes committed between 2002-11 were:
1. Unlawful killings
2. Sexual and gender based violence.
3. Forced disappearances
4. Torture and other forms cruel, inhuman or degrading treatment
5. Recruitment of children, their use in hostilities and abduction and recruitment of adults by LTTE
6. Attacks on civilians and civilian objects, hospitals and humanitarian facilities
7. Denial of humanitarian assistance
8. Violations during the detention of internally displaced people.
“The investigation has laid bare the horrific level of violations and abuses that occurred in Sri Lanka, revealing violations that are among the most serious crimes of concern to the international community”. The report confirms the following past omissions and commissions of Sri Lankan governement, involving also judicial and legal system as well.
1. Failure of domestic inquiries to bring justice.
2. Systematic weakness in addressing the above crimes, especially when military or security forces are involved.
3. Structures responsible for violations and crimes remain in place.
4. Sri Lanka’s security sector and justice system have been distorted and corrupted by decades of emergency, conflict and immunity. Commissioner has forthrightly stated ”The wound of victims on both sides have fested and deepened and unless fundamentally addressed, they may sow seed for further conflict”
5. Mistrust in state authorities and institutions is at high level.
He called for the ”establishment of a hybrid special court, integrating international judges, prosecutors, lawyers and investigators. A purely domestic court procedure will have no chance of overcoming the widespread and justifiable suspicions fuelled by decades of violations, malpractice and broken promises”.
This is a sweeping but a truthful damning statement in a nutshell by the impartial Commissioner which correctly sums up the pathetic state of victims who have been yearning for justice from the said system.
In the face of this undeniable accusations and conclusions, the call for international investigation gained ground and USA also supported the UNHRC Resolution of March 2014 calling for an international process of accountability. Now USA has done a 180 degree U-turn, dropping international investigation and even the recommended hybrid tribunal mechanism. The resolution is now mentioning the importance of participation in a Sri Lankan judicial mechanism of C’wealth and foreign judges and other legal resources. USA earlier threatened Sri Lanka with various measures to unseat Mahinda who lost election with a friendly Ranil government assuming the power, the USA loosened the Tamils’ fight for justice and accountability adopting its double standard policy applicable to states and measured according to their hostility or friendship with USA.
The HRC Report is an eye-opener to the international community who were misled with lies and empty undertakings, dished out by the past Sri Lankan goverments over a period of sixty years. The report has comprehensively detailed the various crimes committed during the period from 2002-2001.
However, the following matters of serious importance have been omitted.
1. Crime of genocide. There is no denying of the fact that the detailed list and description of crimes including war crimes and crimes against humanity were directed at the ethnic group of Tamils who qualify as a nation or group according to the UN convention on Genocide. However the report did not specifically reject the commission of genocide as the Commissioner later said that genocide could well be proved after all evidences are collected and at the conclusion of criminal investigation.
2. The report has deleted the Demilitarization of North and East Provinces which was mentioned in the initial resolution.
3. The report has failed to call for the full stastitics of missing, disappeared, dead and surrendered, viewing the fact that the report mentions of ”almost 300000 IDPs were detained in closed camps immediately after the war.
4. The report also failed to mention about the fate of hundreds of political prisoners languishing in jails for more than 20 years without any charges or trials.
5. International investigation and hybrid tribunal mechanisms have been dropped by these calculated omissions, and the hope of Tamils for proper justice and true accountability has evaporated to a considerable extent, allowing for internal mechanism which the Commissioner stated would not be credible.
Strength and scope of implemenation of the proposals in the Resolutions
While the Commissioner called for “integration of international judges in the hybrid tribunal resolution, the US mentions the importance of participation not even “essential or mandatory” participation of the Commonwealth and foreign judges. These requirements in the proposal are not mandatory and it could be well ignored allowing the way for selecting only Sri Lankan judges, possibly with commonwealth judges as observers. Ranil has already confirmed this position by stating that “Foreign judges are not necessary, but their help could be obtained and all proposals in the resolution will be implemented within the provisions of existing constitution.” As such the credible justice process reiterated in the resolution will remain elusive as ever.
The Resolution relies on the word ‘encourages’ instead of ‘recommends’ or ‘requests’. It encourages the government of Sri Lanka to reform the domestic law, to introduce effective security sector reforms to investigate all alleged attacks by individual or by groups to implement the recommendations contained in the HRC Resolution 25/1, including its findings and conclusions, and also to accelerate the return of lands to their rightful owners.
The word ‘encourages‘ does not carry any compulsion or denotes a mandatory requirement. Words like request or recommends would have carried a more effective complying obligation on Sri Lanka. As such, plenty of space and discretion in granted on Sri Lanka regarding the compliance of those encouraged proposals, which if fully implemented by Sri Lanka will only vindicate the good governance policy as propagated.
Issues facing Sri Lanka
1. Resolution requests the government to implement the LLRC recommendations. This is a more forceful obligation on Sri Lanka. However there is no denying of the fact that most of major recommendations of this report have been gathering dust for the last 4-5 years though repeated requests made by the international community. The chance is that this state of inaction will continue.
2. The resolution welcomes the proposal by the Sri Lankan government to establish a commission of Truth, Justice, Reconciliation and Non-recurrence, an Office of Missing Persons, and an Office for Reparations. The results and conclusions and various past commissions seeking truth and accountability for crimes are well known for their partial and pro-government impunity avoiding and hiding the truths. For instance, the recent Paranagama Commission has come to the conclusion of about 7000 only killed in the war, contradicting the UN estimate of more than 40 thousand. The fate of Udalagama Commission is well known when it was stalled without any verdict as to the killings of civilians in Muthur Farm and students in Trinco.
To expect the proposed Commissions to conduct fairly in fulfilling their objectives for which they are established will only be a wishful thinking in the face of UN’s verdict confirming their unreliability and partiality.
Impact on Sri Lanka
As Ranil has stated “Sri Lanka will have only a domestic mechanism, but will have help of Commonwealth judges. But all that has to be ‘authorized by Sri Lankan law”.
This rules out any hybrid or international mechanism including even the participation of Commonwealth judges as the resolution does not make it as a binding mandatory requirement. Surely, nationalist sentiments and hardcore opposition will stall any foreign presence and participation in Sri Lankan systems. The Sri Lankan government political leadership has already vowed to protect the army who are war heroes including Mahinda. In the face of the above firm undertakings and assertions to shield the perpetrators, it will be naive and foolhardy to expect the wheels of justice to grind fully and fairly in a domestic mechanism to bring the guilty to books.
Sri Lanka’s crimes against its own citizens have been fully exposed to the international community and Sri Lanka will carry this tarnished image until it takes steps to erase it by dispensing proper justice through true accountability and bring about genuine reconciliation.
As stated above, accountability concept is hanging in balance, viewing the firm stand of government’s leaders. Ranil’s boasting and relishing his decision of not signing the Rome Statute reveals the depth of his commitment to save the perpetrators of the listed crimes. The proposed domestic mechanism in order to funtion effectively must be able to invite the witnesses without any hindrance and witnessess or victims living overseas will feel vulnerable to present themselves in Sri Lanka, unless iron-clad protection is given while in Sri Lanka.
Furthermore, there is a possibility for giving priority to investigate LTTE’s crimes and dragging on other matters.
To implement the said proposals, the present government carries heavy burdens including initiating various legislations and amendments, carrying out administrative reforms, security system overhauls and passing proper laws to deal with war crimes, etc… besides setting up of new commissions.
Position of Tamils
The HRC Report has confirmed the lack of faith in any domestic mechanism and more particularly to deal with war crimes and crimes against humanity which are international crimes that can only be investigated by international judges or at least with the equal participation of international judges. Viewing the absence of laws in Sri Lanka to deal with these crimes, it will only be a long journey to reach the destination of justice when viewing the complexities, lack of expertise and sheer number of victims and witnesses involved including the security personnel.
The Tamils living everywhere are agitating and justly demanding the set-up of an international investigation to ensure the credible justice system. TamilNadu government and political parties are also calling for these procedures, while Northern Provincial government passed a resolution to this effect.
However, it is distressing to note the TNA being neither unanimous nor vociferous in calling for international investigation. Its election manifesto was silent on this matter. But, sensing the opposition and criticism TNA called for international investigation in the election platforms. TNA is now back to its confusing and conflicting stance over this issue. While TNA’s constituents, EPRLF, PLOT and TELO are advocating international investigation some if ITAK’s members are saying international investigation is over and better leave it to domestic mechanism with one member while in Canada even suggesting to keep and ‘leave the past’ and the international investigation behind and to concentrate on the future of Tamils stressing that international investigation is over and no more necessary. Another member is signatory of the petition for the international investigation. This divided stance is undoubtedly weakening the calls of international investigation, not to mention the let down of victims and their causes for justice and accountability. It is accountability that should precede reconciliation. Without the accountability for the crimes and perpetrators exposed and punished, no true reconciliation is possible and any reconciliation will be only superficial.
By and large, the Tamils are relieved by the Report’s exposure of Sri Lanka before the international community and so must seize this opportunity to proceed further in canvassing the world community to take whatever steps possible to press Sri Lanka in the right direction or face punitive measures like political or economic sanctions.
Accountability process can be undertaken by the international community by resorting to the universal jurisdiction measure against perpetrators of war crimes and crimes against humanity.
In conclusion, it is plain truth that unless Sri Lanka musters the political will and determination, shedding its majority dominant thinking and implements the mentioned encouraged fitting and just proposals fully and fairly, chances of true reconciliation will be a distance dream “Sowing the seeds for further conflict” as stated by the Commissioner.
The role of UN and Security Council is no less important. The UN and Security Council failed to stop the war and protect the Tamils by exercising their right under the RTP doctrine. If they fail again to uphold accountability and mete out justice, their credibility and relevance is at stake and will be open to question.