What the Tamils Could Expect from the UN Panel of Experts

by Dr. Victor Rajakulendran, Sydney, Australia, December 8, 2010

“Justice is an indispensable ingredient of the process of national reconciliation.

 It is essential to the restoration of peaceful and normal relations between people who have lived under a reign of terror.

 It breaks the cycle of violence, hatred and extra-judicial retribution. 

Thus peace and justice go hand in hand.” 

-Antonio Cassese, former President of the International Criminal Tribunal for the former Yugoslavia (ICTY)

Nature of the Crimes Committed Against Humanity in Sri Lanka

Justice and accountability are of utmost importance following mass atrocities.  During the past three decades of armed conflict in Sri Lanka mass atrocities have been committed resulting in 150,000-200,000 people being killed, many thousands of children orphaned, around 67,000 women widowed today and hundreds of thousands displaced internally. Well over 500,000 Tamils have fled the island, taking refuge in many foreign countries.

During the final phase of the brutal military push into the Tamil-held territory in first half of 2009 in the north-east of the island, terrible atrocities were committed against the 300,000 – 400,000 innocent Tamil civilians who were driven by the Sri Lankan security forces into a narrow swath of land along the coast.

During this phase, indiscriminate artillery shelling,  aerial bombardment and indiscriminate shooting into the civilian population led to nearly 40,000 people being killed, many thousands maimed, many thousand children orphaned, and more than 300,000 being internally displaced.

Even hospitals, schools, places of worship and other public facilities were not spared by the advancing Sri Lankan security forces. Sri Lanka evacuated UN and other international agencies against their wishes from this area and prevented any journalists from entering the war zone. Moreover, the Sri Lankan government ignored the call from the international community to allow independent witnesses into the war zone. The Sri Lankan government instructed the civilians to move into what it called a no-fire zone and in spite of giving assurances to the international community, fired heavy weapons into civilian areas showing absolutely no regard for international law governing armed conflicts.

The innocent civilians trapped in this area were denied a normal flow of food and medicine and medical assistance to the needy, violating all international norms.1,2

The treatment of the 300,000 IDPs, Tamil youth arrested and gunned down execution style, tortured and kept incommunicado until today shows that the Sri Lankan government has totally failed to respect and protect human life and dignity.

Refusal of the Sri Lankan government to heed the repeated calls from the international community for independent international investigations in to alleged war crimes shows it has a lot to sweep under the carpet and its callous disregard for its responsibilities and accountability for its obligations under the UN Charter and Geneva Conventions.

The Sri Lankan government's failure to demilitarise the civilian areas at the end of the armed conflict and settle the displaced Tamils in their own towns and villages accelerated further militarisation of the Tamil homeland. His Excellency Rajapakse’s assertion that Sri Lanka has only one people called Sri Lankan, refusing to even acknowledge the existence of people other than the Sinhala people in the island of Sri Lanka  and the installation of West Bank-style settlement in the north of Sinhala people from the south, all further stand testimony to its genocidal intent.

The Sri Lankan Government has proved beyond any doubt that it has no genuine intention of finding a political solution addressing the legitimate aspirations of the Tamil people and seeking genuine reconciliation with them. 

If there is no intervention from the UN, Sri Lanka will continue with its genocide of the Tamil people with absolute impunity.

Need for UN Intervention

It is true that the war is over in Sri Lanka now.  However, to achieve lasting peace, national reconciliation should take place and justice is indispensable for this as Antonio Cassete, former President of the International Criminal Tribunal for the former Yugoslavia (ICTY) once stated, quoted above.

In the immediate aftermath of the war in May 2009, the Sri Lankan President and the U.N. Secretary-General issued a joint statement wherein the Sri Lankan government committed to addressing alleged violations of international human rights and humanitarian law.3

The Sri Lankan government however, has not only failed to investigate, but also has denied allegations that Sri Lankan troops committed war crimes, crimes against humanity, or genocide during the conflict.4  Therefore, in June 2010, the U.N. Secretary-General established a Panel of Experts and appointed Hon. Marzuki Darusman, Hon. Sooka Yasmin and Hon. Steven R. Ratner as its members to advise him on the issue of accountability with regard to alleged violations of international human rights and humanitarian law during the final stages of the conflict in Sri Lanka. 

Now this Panel is soliciting submissions from the public and many Tamil individuals and organisations must be busy preparing their submissions.

Since the Panel has stated that it will look into the modalities, applicable international standards and comparative experience with regard to accountability processes, taking into consideration the nature and scope of any alleged violations in Sri Lanka and the panel will only advise the Secretary-General and is not an investigative or fact-finding body, it seems obvious that the Panel is not aiming at receiving fresh evidence for violations of  international human rights and humanitarian law during the final stages of the conflict, to what is already available. 

Already Available Evidence and Arguments

Evidences for violations of international human rights and humanitarian law during the final stages of the conflict have already been compiled – for example the Model Grand Jury Indictment for Genocide against Gotabaya Rajapaksa, the Defence Secretary of Sri Lanka and Sarath Fonseka, the former Army Commander of Sri Lanka, prepared by Attorney Bruce Fein, council for Tamils Against Genocide and submitted to the US State Department and US Attorney General (5) - or are being compiled by many other organisations and will be available to the U.N.

In a 54 page report (6) dated 17 May 2010 titled, War crimes in Sri Lanka, the International Crisis group have stated in its Executive Summary and recommendations that, “Evidence gathered by the International Crisis Group suggests that these months saw tens of thousands of Tamil civilian men, women, children and the elderly killed, countless more wounded, and hundreds of thousands deprived of adequate food and medical care, resulting in more deaths. This evidence also provides reasonable grounds to believe the Sri Lankan security forces committed war crimes with top government and military leaders potentially responsible.”   

The Dublin war-crimes tribunal, conducted by the Permanent Peoples’ Tribunal (PPT) based in Milan, which held hearings from 14-16 January 2010 on war-crime charges in Sri Lanka from eye-witnesses and based on other material evidence, in its findings (7) said, the Sri Lankan government is "guilty of War-Crimes" and "guilty of Crimes Against Humanity." The tribunal also concluded that the charge of Genocide requires further investigations. Eye witnesses included several escapees from the final week of Sri Lanka offensive in the Mullaitivu "No Fire Zone" where more than 20,000 Tamil civilians were allegedly slaughtered by the Sri Lanka Army (SLA) training heavy weapons on them.

Jonathan Miller of Channel 4 News UK reported on 08 January 2010 that the U.N. Secretary General could set up an expert panel to look into alleged violations by the Sri Lankan army after a report found video, shown first on Channel 4 News, that "appears to be authentic".  Jonathan Miller reported thus after Philip Alston, an independent United Nations human rights expert said on 07 January 2010 that “there are strong indications that the video of alleged extrajudicial executions by Sri Lankan soldiers that aired last August on British television is authentic”, and called for an inquiry into possible war crimes committed during the conflict with Tamil rebels.8  

Recent new video evidence released by Britain’s Channel 4 News showing alleged rape and massacre of Tamil prisoners (9) and the comments by the US Ambassador in Sri Lanka found in the leaked cable by Wickileaks dated 15 January 2010 (10) that - "There are no examples we know of a regime undertaking wholesale investigations of its own troops or senior officials for war crimes while that regime or government remained in power. In Sri Lanka this is further complicated by the fact that responsibility for many of the alleged crimes rests with the country's senior civilian and military leadership, including President (Rajapakse) and his brothers and opposition candidate General Fonseka" – prompted the British government to renew its call on 2 December 2010 that Sri Lanka must hold an independent probe into possible human rights violations during its civil war.11

Choice of approach to Justice and accountability

To quote Hon. Ms. Sooka Yasmin (12) who is a member of this Panel; “The manner in which a prolonged violent conflict is brought to an end has a huge impact on the choice of approach to be employed during a transition. A military victory by one side over the other will usually allow for a criminal justice mechanism. A negotiated peace agreement that initiates a transition to democracy on the basis of a voluntary transfer of power will result, in most instances, in a truth commission being established.”

This author is of the considered view that since this U.N. Secretary-General’s panel is only intended to deal with the violations during the final stages of the conflict in Sri Lanka and not the 60 year old ethnic conflict, the most appropriate approach to deliver justice and accountability in Sri Lanka is to use a criminal justice mechanism. 

Moreover, Sri Lanka treats the Tamil people as a defeated entity and has not treated the commanders and cadres of the Liberation Tigers of Tamil Eelam (LTTE) as prisoners of war. Instead, it has summarily tortured and executed them and even many civilians under the pretext that they were supporting the de-facto LTTE administration or their sympathisers. Even after announcing that they are silencing the guns and would be pursuing a democratic and peaceful path and proving to date of their sincerity by not carrying out a single violent act, the Sri Lankan government is not willing to offer these ex-combatants a democratic space to operate as it did earlier to the JVP outfit in the south.  Further, the Sri Lankan government is continuing to desecrate the memorials built for the national heroes of the Tamil people and erasing any remaining evidence of the long and rich Tamil history and heritage in the Tamil homeland.

Under these circumstances, convening a truth and reconciliation commission by the Sri Lankan government will only be seen as window dressing and has the sinister motive of undermining any internationally supervised independent investigations into war crimes and genocide of a people.

When national accountability efforts are inadequate due to ethical, legal, or political reasons, the United Nations has very often stepped in and facilitated the implementation of effective judicial processes. Over the years, the international community has utilized a variety of accountability mechanisms, beginning with the precedent set by the Nuremburg trials and continuing to the more recent establishment of ad hoc tribunals and hybrid courts. When the need has arisen, the United Nations has assumed the burden of establishing an international tribunal that operates independent of the offending state. On occasions, the United Nations has incorporated a customized national legal system into the accountability process, consequently restoring the integrity of the state’s judiciary.

Available criminal justice mechanisms are;

1. United Nations incorporating a customized national legal system into the accountability process,

2. Taking the perpetrators of these crimes to the International Criminal Court (ICC), and

3. U.N. establishing an international tribunal.

Which is suitable for the situation in Sri Lanka?

Amidst repeated call by the U.N. Secretary General and the international community for an impartial, independent inquiry into the alleged violations of international human rights and humanitarian law during the final stages of the conflict, both through the statements and concerted actions of officials, the Sri Lankan government has demonstrated its unwillingness to address war crimes, crimes against humanity, and genocide, or to receive support from outside, in accountability initiatives.

For example, the Sri Lankan Foreign Minister has expressly refused to act upon recommendations of well-respected non-governmental organizations, such as Amnesty International, Human Rights Watch, and the International Crisis Group, regarding war crimes investigations, stating that the government would only consider yielding to the United Nations.13  However, when U.N. Secretary General announced that he was going to appoint this Panel, Sri Lanka hurriedly constituted its now infamous Lessons Learnt and Reconciliation Commission (LLRC) to make the Secretary General’s advisory panel irrelevant.  Five of the eight individuals appointed to the commission are former government officials (14, 15) and in particular, the appointment of former Attorney General Chitta Ranjan de Silva as the chairman of the LLRC raises concerns not only about the impartiality of the LLRC, but also about the effectiveness of the inquiry because Mr. de Silva reportedly obstructed the work of an earlier commission tasked with investigating possible government involvement in violations committed by Sri Lankan security forces.16  Neither the Sri Lankan government has given sufficient protection to the witnesses giving testimony before the LLRC (17) nor the LLRC, has been given a mandate to examine allegations of war crimes, including crimes the Sri Lankan security forces committed against Tamil civilians.18   Therefore the option for the UN to use the national legal system has been already denied by the Sri Lankan administration.

Although the International Criminal Court (I.C.C) was officially established on July 1, 2002 and war crimes committed after this date of establishment of the court will fall under its jurisdiction, only those nations that ratify the Rome Statute of the I.C.C, the document outlining the purposes, capabilities and restrictions of the I.C.C., will fall under its jurisdiction.  Unfortunately, Sri Lanka, along with the major industrialised states United States, Russia and Japan are yet to ratify the Rome Statute.  Therefore any perpetrators of alleged war crimes in Sri Lanka cannot be indicted in the I.C.C.

Therefore the only effective mechanism left for the U.N. to deal with the alleged violations of international human rights and humanitarian law during the final stages of the conflict in Sri Lanka is to establish an International War Crimes Tribunal for Sri Lanka (IWCTSL).

Following a conflict as that in Sri Lanka, crimes that have exceeded the normal parameters of war behaviour must be dealt with before a society can begin the peace building process of reconciliation.  Despite the often heinous nature of the crimes that individuals commit during intractable conflicts like that in Sri Lanka, including genocide, torture, and rape, it has become common practice to offer the accused an opportunity to explain his or her actions in front of the victims and their families, as well as the media.  These tribunals also offer victims and their families the opportunity to confront those responsible for what happened to them, and hopefully to put the horrors of war behind them. In other words a tribunal can be a forum for honouring the memory of those lost, as well as punishing those responsible.

The war crimes tribunals of Nuremberg and Tokyo, in which legal justice was used to punish the upper echelons of the German and Japanese military following World War II, are regarded as the most successful tribunals to date. The democratic, progressive success of both nations following these tribunals is often given as evidence of the effectiveness of war crimes tribunals in helping a society that has perpetrated war crimes to return to stable diplomatic relations and the road to peace.  Therefore Sri Lanka is to gain the most, through an IWCTSL by regaining the present partly strained relationship with the West in general.

War Crimes Tribunals (WCT) can act as a deterrent to potential war criminals emerging in the future. In the absence of provisions to create WCT, military and government leaders may feel emboldened to commit crimes such as the mass murder of ethnic groups in East Timor in the 1980s and 1990s or in Rwanda in 1994 and Sri Lanka itself in 2009.  WCT also offer a rare chance for the world's leaders and citizens to scrutinize both the deplorable decisions made by particular leaders, and the atrocities committed by the soldiers and agents of those leaders. Without such a forum, there would be no method for assuring that the masterminds and perpetrators of genocide and other war crimes are justly punished.

WCT also give victims and their families an opportunity to regain a sense of power that may have been lost resulting from a war crime. It is empowering for victims to stand up in a court of law and identify those who wronged them. A war crimes tribunal can also force forgotten or hidden atrocities to be retold by survivors. In this way war criminals living free of judgment are finally forced to accept responsibility for their actions and be judged for what they have done.

Finally, if all members of a society (in this case the Sri Lankan society) can agree upon what is unacceptable by trying its war criminals, then it is easier for the society to agree on what is acceptable. A successful WCT allows the past to be laid to rest and a peaceful future forged from its results.

The International Criminal Tribunal for the former Yugoslavia (ICTY), since its establishment in 1993, has irreversibly changed the landscape of international humanitarian law and provided victims an opportunity to voice the horrors they witnessed and experienced. This Tribunal has shown that an individual’s senior position can no longer protect them from prosecution.   It has now shown that those suspected of bearing the greatest responsibility for atrocities committed can be called to account, as well as that guilt should be individualised, protecting entire communities from being labelled as “collectively responsible”.  This is very relevant to the Sri Lankan context.

The ICTY has also proved that efficient and transparent international justice is possible.  This Tribunal has contributed to an indisputable historical record combating denial, and helping communities come to terms with their recent history. It has been proved that crimes across the region can no longer be denied. For example, it has been proven beyond reasonable doubt that the mass murder at Srebrenica was genocide.  Similarly an IWCTSL will help to prove whether the Tamils’ claim that what has happened in the north of the country was genocide or not.

While the most significant number of cases heard at the ICTY has dealt with alleged crimes committed by Serbs and Bosnian Serbs, the Tribunal has investigated and brought charges against persons from every ethnic background. Convictions have been secured against Croats, as well as both Bosnian Muslims and Kosovo Albanians for crimes committed against Serbs and others.  While its judgements demonstrated that all parties in the conflicts committed crimes, the Tribunal regarded its fairness and impartiality to be of paramount importance. It took no side in the conflict and did not attempt to create any artificial balance between different groups. Evidence was the basis upon which the prosecution presented a case. The Judges ensured a fair and open trial, assessing the evidence to determine the guilt or innocence of the accused.  This is only possible when Judges from outside the country are engaged in the process.

Undoubtedly, the ICTY’s work has had a major impact on the states of the former Yugoslavia. Simply by removing some of the most senior and notorious criminals and holding them accountable the Tribunal has been able to lift the taint of violence, contribute to ending impunity and help pave the way for reconciliation which is what needed badly in Sri Lanka at the moment.

Conclusion: Panel is expected to recommend to the S.G. to establish a War Crimes Tribunal

In light of Sri Lanka failing to fulfil its obligations under the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War and the Convention on the Prevention and Punishment of the Crime of Genocide, in order to establish an accountability mechanism for Sri Lanka that satisfies the interests of international peace, stability, and justice as U.N. would like to, this author trust that most of the Tamils will expect this U.N. Panel to take into consideration;

• All the arguments and facts given above about the accountability processes,
• Sri Lankan government’s continued failure to implement accountability procedures,
• The Sri Lankan government’s obstruction to the functioning of this very same U.N. Panel,
• Lack of political will of the Sri Lankan government to implement the U.N. panel’s recommendations,
• True accountability cannot be achieved through mere reports of criticism about the scarcity of appropriate accountability proceedings in Sri Lanka,
• Victims, the Tamil civilian population, lacks the political capacity and the resources to remedy the situation and
• Without outside intervention the Tamil community’s need for truth, justice and redress will continue to be marginalised and

Strongly recommend to the U.N. Secretary General to establish an International War Crimes Tribunals for Sri Lanka, with the power to prosecute persons most responsible for perpetrating international crimes, without further delay.

Endnotes

1.) See – Human Right Watch comments – Sri Lanka: Urgent Action Needed to Prevent Civilian     Deaths.   28 January 2009…..available at

http://www.hrw.org/en/news/2009/01/28/sri-lanka-urgent-action-needed-prevent-civilian-deaths

2.) See – ReliefWeb news – Sri Lanka Tigers demand direct foreign aid. 5 May 2009….available  at

http://www.reliefweb.int/rw/rwb.nsf/db900SID/AMMF-7RRKPL?OpenDocument

3.) See - Joint Statement by U.N. Secretary-General, Government of Sri Lanka, 12, U.N. Doc. SG/2151(May 26, 2009)…… available at

http://www.un.org/News/Press/docs/2009/sg2151.doc.htm

4.) See - BBC News on “Sri Lankans Besiege U.N. Office Over War Crimes Panel”:”Sri Lanka says an inquiry is not needed and denies troops committed war crimes”.BBC.CO.UK, July 6, 2010…. available at

http://www.bbc.co.uk/news/10519247.

5.) United States District Court Central District of California, United States of America V. Gotabaya Rajapaksa and Sarath Fonseka, Case No. ---- 18 U.S.C 1091, 18 U.S.C 2441, 18 U.S.C 2340A…..available at

http://www.tamilsagainstgenocide.org/Docs/Final800pIndictmentDocument.pdf

6.) War crimes in Sri Lanka.  Asia Report No. 191.  17 May 2010…Available at

http://www.crisisgroup.org/~/media/Files/asia/south-asia/sri-lanka/191%20War%20Crimes%20in%20Sri%20Lanka.ashx

7.) People’s Tribunal on Sri Lanka, Permanent People’s Tribunal, Trinity College, Dublin,

       Ireland / 14-16 January 2010…available at

http://www.tamilsagainstgenocide.org/Docs/Final800pIndictmentDocument.pdf

8.) Deeming Sri Lanka execution video authentic, UN expert calls for war crimes probe.  UN

      News Centre. 07 January 2010 …….. available at

http://www.un.org/apps/news/story.asp?NewsID=33423&Cr=sri+lanka&Cr1=

9.) See – Channel 4 News – Sri Lanka execution video: new war crimes claims. 30.  November    2010……..available at

http://www.channel4.com/news/sri-lanka-execution-video-new-war-crimes-claims

10.) See – A copy of the Cable sent from US Embassy in Colombo on 15 January 2010  on the Subject: Sri Lanka war-crimes accountability: The Tamil Perspective …… available at

http://www.tamilnet.com/img/publish/2010/12/WikiCable15Jan2010.pdf

11.) See – Yahoo News – Britain Urges Sri Lanka war probe…….available at

http://ca.news.yahoo.com/s/afp/101202/world/srilanka_britain_politics_diplomacy_3

12.) See - Yasmin Sooka, Dealing with the past and transitional justice: building peace through accountability. International Review of the Red Cross. Volume 88, Number 862, June 2006. PP 316……. available at

http://www.icrc.org/eng/assets/files/other/irrc_862_sooka.pdf

13.) Amnesty International Can’t Dictate Terms to us, Says Lankan Minister.  Official Website of the Government of Sri Lanka June 1, 2010……..available at   

http://www.priu.gov.lk/news_update/Current_Affairs/ca201006/20100601amesty_int_cant_dictate_terms_to_us_lankan_minister.htm

14.) Commission on Lessons Learnt & Reconciliation (LLRC), Context. 26 Aug. 2010. Official website of the government of Sri Lanka….Available at

http://www.priu.gov.lk/news_update/LLRC%20news/llrc_home.htm

15.) Commission on Lessons Learnt & Reconciliation (LLRC), Commission Members. 31 August 210. Official website of the government of Sri Lanka….Available at

http://www.priu.gov.lk/news_update/LLRC%20news/20100826commission_members.htm.

16.) See – Report to Congress on Measures Taken by the Government of Sri Lanka and International Bodies to Investigate Incidents During the Recent Conflict in Sri Lanka, and Evaluating the Effectiveness of Such Efforts. US Department of State, Office of War Crimes Issues, Report 11 August2010… Available at

http://www.state.gov/s/wci/srilanka/releases/145884.htm

17.) See Paikiasothy Saravanamuttu, From Post-war to Post-conflict, Global Peace Support Group. 06 Aug. 2010……Available at

http://www.globalpeacesupport.com/globalpeacesupport.com/post/2010/08/06/From-post-war-to-post-conflict.aspx

18.) See – Report to Congress on Measures Taken by the Government of Sri Lanka and International Bodies to Investigate Incidents During the Recent Conflict in Sri Lanka, and Evaluating the Effectiveness of Such Efforts. US Department of State, Office of War Crimes Issues, Report 11 August2010… Available at

http://www.state.gov/s/wci/srilanka/releases/145884.htm