A Second Chance to Confront War Crimes in Sri Lanka

by Armin Rosen, The Atlantic Monthly, New York, April 28, 2011

In early 2009, Sri Lankan president Mahinda Rajapaksa faced an opportunity, and possibly a moral quandary. Since 1976, the country's Sinhalese majority had weathered a brutal campaign at the hands of one of the deadliest terrorist groups in modern history: the Liberation Tigers of Tamil Eelam, an ethnic Tamil separatist group that occupied parts of the country's northeast. For the previous two years, Rajapaksa's government had stepped up its fight against the Tigers, using means that were effective as well as morally dubious. In 2007, the military waged a campaign in the country's northeast that was often restrained but also included, for example, extensively shelling the city of Vakarai, including its civilian hospital. Targeted killings became common: over sixty aid workers had been killed in Sri Lanka since 2007. In January 2009, masked gunmen murdered the editor of the Sunday Leader, a newspaper often critical of the government. But the Tigers were on the run, and months of shelling had confined them to the northern corner of the Vanni region. The endgame to the 26-year civil war came with civilians tightly clustered on a stretch of beach that the government had designated a "no fire zone." And although Rajapaksa seemed committed to exterminating the LTTE, it was not yet clear just how violent that endgame would be, according to Alan Keenan, the International Crisis Group's Sri Lanka. "No one was sure that the government was willing to use such brutal and indiscriminate fire power against areas so densely populated with civilians," he said.

Yet that is exactly what it did, according to a United Nations report released late Monday. By May 19th, the Tigers were defeated, and a panel of international legal experts appointed by U.N. Secretary General Ban Ki Moon catalogues the cost of the government's victory. "Between September 2008 and 19 May 2009, the Sri Lanka Army advanced its military campaign ... using large-scale and widespread shelling, causing large numbers of civilian deaths," the report states. The government shelled three "No Fire Zones ... where it had encouraged the civilian population to concentrate." It shelled a "United Nations hub," as well as food distribution lines set up by the International Committee of the Red Cross, which was the only humanitarian organization the Sri Lankan government allowed in Vanni. "All hospitals in Vanni were hit by mortar and artillery," while the internally displaced were herded into squalid refugee camps.

It was the horrifying conclusion of a campaign that, in retrospect, Sri Lankan leaders had seldom waged with transparency or international law in mind: as early as 2006, the government had devised "measures to control information about and access to the combat zones," and had been providing "deep penetration units" comprised of former LTTE militants with heavy weaponry. The panel found that "white vans were used to abduct and often disappear critics of the Government or those suspected of links with the LTTE, and, more generally, to instill fear in the population." Faced with the prospect of ending a three-decade long civil war, the Sri Lankan government decided to ignore international legal norms, and expelled or otherwise silenced the journalists or activists who could hold them to account. The report puts the number of civilian dead at between 7,000 and 40,000 -- a wide variance attributable to the Sri Lankan government's expulsion of NGOs, journalists, and international observers from Vanni in September of 2008.

The report is detailed and even-handed, and it discusses the LTTE's use of human shields and forced conscription. But it is only a first step towards establishing accountability in Sri Lanka. The panel was not a formal investigation: the Sri Lankan government prevented panel members from touring the former conflict zone or interviewing LTTE prisoners or military officials, and the expert panel's mandate was limited to advising the Secretary General on how to proceed with investigating any possible war crimes. Ban could now urge the United Nations Security Council to set up a more formal commission of inquiry -- which is unlikely, given China's close political and economic ties with Sri Lanka, as well as China and Russia's general wariness of international investigations into how governments treat their own citizens. The United Nations Human Rights Council (UNHRC) in Geneva could authorize its own report, as it did after the Israeli assault on Gaza in January 2009. But this is even less likely. In May of 2009, a few days after the end of major hostilities, the UNHRC approved a measure congratulating Sri Lanka on its defeat of the LTTE, and ignoring allegations of war crimes. "Sri Lanka is a long-time player in the Non Aligned Movement," explains Hillel Neuer, director of the Geneva-based organization UN Watch, "and supports all Arab and Islamic initiatives. So in turn they all shielded Sri Lanka."

Ban could also order an investigation on his own initiative, as he did in 2009 after the killing of protestors in Guinea, according to James Ross, the legal and policy director for Human Rights Watch. But Ban could also choose to do nothing -- a possibility that would be drearily consistent with the UN's moral and political equivocation both during and immediately after the Sri Lankan government's final push against the LTTE.

As the Sri Lankan civil war reached its ugly culmination, the UN adopted a stance that probably made the conflict's endgame far bloodier than it otherwise would have been. The world body hastily acquiesced to the government's request that all humanitarian agencies (other than the International Committee of the Red Cross, which has a policy of confidentiality with respect to what it witnesses) pull out of Vanni in September of 2008. Although the government claimed humanitarian organizations were being expelled for their own safety, the move "paved the way for the ability of the government to sort of fight an absolutely no holds barred kind of war," Keenan says. If the UN was concerned about this possibility, it kept these concerns to itself. "The very least they could have done is objected publically," Keenan argues. "They could have said 'listen, we could operate there safely if you respected our safety' and made it clear that they're not simply going to leave and close their eyes."

They did neither, signaling the UN's accommodating policy towards the government of Sri Lanka. In the final stages of the conflict, Ban Ki Moon sent Vijay Nambiar, his chief of staff, to help negotiate a peaceful end to the conflict. While he was in Sri Lanka, Nambiar helped establish a line of communication between the government and LTTE officers, who were later killed while waving white flags in the no-man's land near the Sri Lankan army's front lines. Sree Tharan, an activist with the U.S.-based organization Tamils Against Genocide, says that Nambiar's role in the so-called "white flag killings" should be investigated. "We're not saying that anyone's faulted," says Tharan, "but there's enough evidence to know that he was part of the negotiating group." He also suggested that Nambiar, whose brother is a high-ranking Indian army officer who served as a consultant to the Sri Lankan government in 2002, "should never have been involved with anything having to do with Sri Lanka."

The UN also failed in treating the situation in northeast Sri Lanka like the humanitarian catastrophe that it was. Ross faulted the UN for refusing to publicize their casualty numbers during the closing months of the war. The report says that the UN's Sri Lanka country team estimated that 7,721 civilians had been killed before May 13 alone. Making those figures public could have brought much-needed global attention to the government's actions during the final months of the war. Keenan adds that the UN should have pressured the government into admitting that up to 300,000 civilians were living in Tiger-controlled areas in Vanni. The government claimed that only 75,000 to 100,000 civilians were caught in the conflict zone. But the UN could have shared their internal, more reliable population statistics with the public, perhaps forcing the government to allow more humanitarian aid into the northeast -- and making it more difficult for them to cover up the number of dead or missing after the war. But they did not, and the UN's refusal to publicize their casualty and population statistics during the conflict allowed the government to lie about the scope of the humanitarian emergency in Vanni.

Days after hostilities ended, Ban toured IDP camps with President Rajapaksa, in what some interpreted as a propaganda victory for the government, which used the visit to bolster its legitimacy. "What the UN never did was really grapple with the nature of the regime they were working with," says Keenan. "They never realized that these guys were willing to do anything to win."

This week's report offers a second chance for the UN to uphold its own vaunted standards of accountability and human rights in Sri Lanka. The stakes are arguably as high as they were during the conflict itself: without a formal investigation, the Sri Lankan government's effective yet brutal counterinsurgency tactics could seem irresistible to countries with their own internal security issues. Already, 31 countries have agreed to send representatives to a seminar entitled "Defeating Terrorism: The Sri Lankan Experience," which the Sri Lankan government has scheduled for this May. The UN Security Council, Human Rights Council, or, if necessary, Ban Ki Moon himself now have an opportunity to do what they should have done in early 2009: expose "The Sri Lankan Experience" for the atrocity that it was.