by Sarava Kanesathasan, ‘The Island,’ Colombo, September 20, 2015
To its credit, it was the US that initiated the international accountability process in Sri Lanka through the 2014 UNHRC resolution which called for an international investigation by the Office of the UN High Commissioner (OISL Report).
That resolution was preceded by five years of failure of domestic accountability and deteriorating human rights and governance with impunity in violation of repeated commitments by the Sri Lankan government, beginning with the Joint Communique between the Secretary General and the Government after the war had ended with the LTTE annihilated.
The US call was a courageous and principled step because in its own admission and that of the UN Secretary General, both IC and UN had knowingly failed in their responsibility under international human rights and humanitarian law and the UN Charter to protect the trapped civilians from ongoing mass atrocities during the war and its immediate aftermath.
The OISL report released on September 16, (UNHRC Statement Sept. 16) which is to be discussed very shortly by UNHRC, found evidence of “horrific level of violations and abuses that occurred in Sri Lanka, including indiscriminate shelling, extrajudicial killings, enforced disappearances, harrowing accounts of torture and sexual violence, recruitment of children and other grave crimes”, predominantly by the Sri Lankan government.
It called for ‘the establishment of a hybrid special court, integrating international judges, prosecutors, lawyers and investigators, as an essential step towards justice’.
OISL ruled out another round of domestic accountability that has been proposed by the Sri Lankan government. It noted that the “unfortunate reality is that Sri Lanka’s criminal justice system is not yet ready,” “First and foremost is the absence of any reliable system for victim and witness protection. Second is the inadequacy of Sri Lanka’s domestic legal framework to deal with international crimes of this magnitude. The third challenge is the degree to which Sri Lanka’s security sector and justice system have been distorted and corrupted by decades of emergency, conflict and impunity.”
It also held that “many of the structures responsible for the violations and crimes remain in place” and also noted the”years of denials and cover-ups, stalled investigations, and reprisals against family members of victims who pushed for justice.”
It is now imperative that the US take the lead in UNHRC in support of OISL’s findings and the speedy implementation of OISL’s recommendation to establish a hybrid special court, which has been strongly supported by the UN High Commissioner for Human Rights.
Such action by UN and IC, under US leadership, is urgently needed to redress their protracted and grave failures in Sri Lanka, during and after the war and thereby finally bring truth, justice, compensation and guarantee of non- recurrence to the victims, as is their due under international law.
It is also urgently needed to restore integrity to the global system of universal human rights and international human rights and humanitarian law, and the UN Charter.
The UN High Commissioner has emphasised that Sri Lanka now has a new opportunity to ensure accountability and truly fundamental changes that needed for reconciliation.
It is also an opportunity for the UN and IC to redress the horrific impact of their failures, especially on the victims.
At the same time, accountability cannot wait until such fundamental change, which will take time and is highly uncertain.This is a core problem with the new domestic accountability process and mechanism proposed by Sri Lanka.
Among the most serious crimes documented by OISL are “a discernible pattern” of extra-judicial killings by Sri Lankan security forces and associated paramilitaries; sexual and gender based violence by security forces which “were not isolated acts but were part of a deliberate policy to inflict torture, following similar patterns and using similar tools; “enforced disappearances which may have been committed as part of widespread and systematic attack on the civilian population”; “premeditated and systematic use of torture” by security forces throughout and particularly during the immediate aftermath of the conflict ; “repeated shelling by the Government of hospitals and humanitarian facilities; denial of humanitarian assistance; and abuse of internally displaced Tamils in closed army camps.
Deeply flawed actions of UN and IC in Sri Lanka
An obvious question is how did the horrific violations described by OISL occur in Sri Lanka over number of years and the domestic accountability process fail so completely while the UN and IC were continuously engaged in Sri Lanka during and after the war.
The answer is clear and authoritatively evidenced. Both the UN and IC deliberately turned a blind eye to the grave violations being committed by the Sri Lankan government in direct violation of their responsibilities under international law including the UN Charter as well as post Rwandan rules to protect civilians.
Instead, they confined themselves only to condemning the LTTE’s violations, deliberately avoiding mention of violations by the Sri Lankan government even as horrific crimes described in OISL report were being committed by the government.
The evidence is direct and detailed in regard to their failed, if not complicit, actions during the war and its immediate aftermath, in reports of the UN Panel of Experts on Accountability (March 2011) and particularly the Petrie Internal Report on UN Actions in Sri Lanka (November 2012)
The same pattern of actions by the UN and IC continued into the post war period despite the government’s repeated failures to meet its solemn commitments to the UN and IC, until, thankfully, the US sponsored the first of the UNHRC resolutions in March 2012, which eventually led to the 2014 UNHRC resolution calling for an international investigation.
The public silence of the UN and IC continued even as the Sri Lankan government implemented progressively more repressive policies under cover of military occupation of the North East, openly in support of its avowed policy that Sri Lanka belongs only to Buddhist Sinhalese and all others are “outsiders” without inalienable rights — an aspect which was never mentioned by UN and IC.
Finally, in September 2013, following a detailed indictment by Charles Petrie of UN actions in Sri Lanka, the Secretary General acknowledged “a systemic UN failure” in Sri Lanka. However, he put the blame largely on IC, claiming that “Member States did not provide the United Nations system with support to meet the tasks they themselves had set; and the system itself unfortunately did not adapt properly or deliver fully.”
As for IC’s role, a public statement in September 2014 by the US delegation to UNHRC acknowledged that:
“A most troubling aspect of recent atrocities is the concern that they could have been prevented had the international community responded earlier and more appropriately.
“Tens of thousands of lives could have been saved. The future of whole ethnic groups, states, societies, indeed the world, could have been transformed for the better.
“Through reflection on those failures to act –Rwanda, Bosnia, Darfur, Sri Lanka, and Syria – we appreciate the vital role that prevention plays in the promotion and protection of human rights.” (US Statement at 2014 Panel on Role of Prevention – Ilankai Tamil Sangam)
Nothing better encapsulates the deeply flawed role of the UN and IC in Sri Lanka, than the fact that atrocities by the government continued against the approximately 300,000 Tamil civilians who had surrendered to the government when the war ended on May 18, 2009 and the LTTE had been annihilated.
Most importantly, the continuing atrocities occurred even after the UN- Sri Lankan Joint Communique of May 23 2009, as well as calls on May 13, 2009 in a Security Council press release and personally by President Barack Obama on the Sri Lankan Government to protect civilians who had surrendered and to allow access to humanitarian agencies and supplies. Ironically the Defence Secretary Gotabhaya Rajapaksa, who had effective command responsibility, was a US citizen.
The atrocities occurred in government custody without any issues of “collateral damage” or “fog of war” However, the UN and IC again remained silent just as they had done during the war. Thereby, the government’s “culture of impunity” was set firmly set in place.
A particularly unprecedented and indefensible aspect of the Sri Lankan debacle has been the extraordinary role played by the Secretary General, effectively in support of Sri Lankan government, violating in the process his sworn responsibilities under the UN Charter and international law and even the minimal moral responsibility of saving lives.
First, according to Charles Petrie, during the war he had withheld information on ongoing violations by the government even from the Security Council and pressured the Office of the UN High Commissioner for Human Rights to do likewise. Second, the Secretary General shelved without any explanation the UN Expert Panel’s report and its recommendations, thereby setting Sri Lanka on its downward trajectory on human rights, accountability and reconciliation. Third, he conspicuously failed to support the US-led initiative at UNHRC by continuing to remain silent about post-war violations by the government and failed domestic accountability documented in successive US sponsored UNHRC resolutions and reports by the UN High Commissioner for Human Rights.
It is to be hoped that the UN and IC, under US leadership will not let the OISL findings and its principal recommendation suffer a similar fate, with the same fateful consequences to accountability, human rights and reconciliation and in particular to the victims as well as to the integrity of the global system of human rights and humanitarian law.