by Kate Cronin-Furman, JustSecurity.org, New York, March 26, 2021
(Editor’s Note: This is the latest in a series on the spotlight placed on allegations of war crimes and other abuses in Sri Lanka during the February 22 to March 23, 2021, session of the United Nations Human Rights Council. The series includes voices from former U.N. officials, international NGOs, human rights litigators, and researchers. Find links to the full series, as installments are published, at the end of the first article, Spotlight on Sri Lanka as UN Human Rights Council Prepares Next Session.)
For 12 years, survivors and activists have been demanding justice for the tens of thousands of Tamil civilians killed by the Sri Lankan military at the end of the war against the Liberation Tigers of Tamil Eelam. The United Nations Human Rights Council, despite its serious institutional constraints, has been the primary venue in which this campaign for accountability has been fought. This week, the council passed its eighth resolution on Sri Lanka, following intense lobbying by Tamil and international human rights groups for an independent investigative mechanism like those created for Syria and Myanmar.
But while the resolution demonstrates a genuine desire to grapple with persistent impunity and the worsening human rights situation in Sri Lanka, it falls short of addressing victims’ key requests. This disconnect, embodied by the contrast between the serious concerns expressed in the resolution and the fairly anemic actions it proposes, highlights the profound limitations on the Human Rights Council to promote justice for mass atrocities.
Despite ranking as some of the worst state-perpetrated violence against civilians in the early 21st century, the atrocities committed by Sri Lankan forces have been met with impunity, enabled by the uneven reach of international human rights institutions. It has been a consistent demand from the Tamil community that the international community recognize and prosecute the crime of genocide, on the grounds that the Sri Lankan military acted pursuant to a longstanding plan to destroy the Tamil nation.
But because it is not a State party to the International Criminal Court, Sri Lanka is protected from action at the primary international venue tasked with investigating such claims. The only way Sri Lankan officials could be tried in The Hague would be pursuant to a U.N. Security Council referral, an option that veto-wielding Russia and China have said they would oppose and that their Western counterparts have been unwilling to pursue. This has meant efforts to secure international action have concentrated largely on the Human Rights Council, whose mandate and membership make it far less willing to take measures that might be read as a challenge to a state’s sovereignty.
Abusers’ Leverage Over Council’s Path
The Human Rights Council’s preference for engaging cooperatively rather than antagonistically, and the opposition of some members to “state-specific resolutions” (measures that call out an individual state for violations of its human rights obligations), have enabled Sri Lanka to exert significant control over the path of council engagement. Despite growing international concern over the worsening human rights situation in 2012 and 2013, Mahinda Rajapaksa’s government managed to leverage its creation of a weak Lessons Learnt and Reconciliation Commission to deflect calls for an international inquiry. Over the protests of victims who pointed to the government’s categorical denials of war crimes as a clear indication that it would not seek accountability, the Human Rights Council passed resolutions calling on Sri Lanka to pursue transitional justice domestically.
If it should have been apparent in 2012 that domestic accountability was not likely, that reality is acutely obvious today. After a four-year interregnum, the Rajapaksas, who oversaw the bloody final phase of the war, came back to power in late 2019. President Gotabaya Rajapaksa, who served as his brother Mahinda’s defense secretary, is personally accused of command responsibility for serious violations of international law. Upon taking power, he quickly abrogated the transitional justice commitments his predecessor, Maithripala Sirisena, had made to the Human Rights Council in 2015.
The conduct of the Gotabaya Rajapaksa administration has rung one human rights alarm bell after another. A report released in January by the Office of the High Commissioner for Human Rights (OHCHR) documented increasing militarization of the government, targeting of civil society, and the calculated use of COVID-19 restrictions to repress the Tamil and Muslim communities. It also highlighted the heightened risk of recurrence of serious human rights violations posed by the entrenchment of impunity.
It was against this backdrop that the U.N. Human Rights Council voted on March 23 to pass a resolution on “Promoting reconciliation, accountability and human rights in Sri Lanka.” The resolution picks up on many of OHCHR’s concerns, decrying the absence of accountability (operative clause 5) and noting the “deteriorating situation of human rights in Sri Lanka” and the risk of recurrence of grave violations (operative clause 7). It raises the forced cremation of Muslim COVID-19 victims (operative clause 8) and repeats the perennial call for Sri Lanka to repeal its draconian Prevention of Terrorism Act (operative clause 12).
Accountability Delayed
But the resolution’s most significant action essentially kicks accountability further down the road — a decision to “strengthen [ ] the capacity of the Office of the High Commissioner to collect, consolidate, analyse and preserve information and evidence and to develop possible strategies for future accountability processes for gross violations of human rights or serious violations of international humanitarian law in Sri Lanka, to advocate for victims and survivors, and to support relevant judicial and other proceedings, including in Member States, with competent jurisdiction” (operative clause 6) and a budget of $2.8 million to implement it.
The language is far weaker than victims had hoped and reflects the perpetual tension between, on the one hand, the preference of council members to encourage States to act domestically and, on the other, calls from victims and international civil society to give the operative clauses some teeth. Here, the word “collect” was a critical addition, following determined lobbying from Tamil and international advocacy organizations.
Early reactions to the resolution have been mixed. The run-up to the council session saw unusually cohesive calls from the Tamil community for decisive action, including an unprecedented joint letter by all major political parties and civil society groups, asking that council members escalate the push for accountability out of the Human Rights Council to the General Assembly or Security Council. This demand was motivated by the frustration felt among victims, after 12 years of fighting to keep Sri Lanka on the agenda, that engagement with the council appears to have no endgame.
But with Sri Lanka fundamentally resistant to pursuing justice, and the U.N. Human Rights Council both unwilling and unable to impose an accountability process, the options were always quite limited. Read optimistically, the new resolution opens the possibility that the mandated 18 months of enhanced scrutiny and evidence-gathering will improve the chances that foreign countries might prosecute those most responsible under the principle of universal jurisdiction. It’s not the robust independent mechanism victims campaigned for, or the referral to the ICC that they deserve, but it is a potential path to justice.