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The politics of domestic and international accountability options in Sri Lanka

Mar 28, 2011 9:54:00 PM- transcurrents.com

by Alan Keenan

1. The need for an international investigation

The International Crisis Group, like others concerned with a sustainable and just peace in Sri Lanka, has been calling for the establishment of an independent and international commission to look into the many credible and well-documented allegations of war crimes in the final months of Sri Lanka’s long civil war. A serious and independent accountability mechanism is needed, first of all, as a matter of principle. The violations of international humanitarian law that we have evidence of and wrote about in our May 2010 report on War Crimes in Sri Lanka, point to the deaths of tens of thousands of civilians in the final four months of fighting and an assault on the fundamental principles of the laws of war.

These are simply too serious to be left without investigation or acknowledgment. Accountability is also important for achieving a set of broader conflict resolution goals: to open up greater political space in Sri Lanka’s shrinking democracy, to lay the groundwork for political reconciliation between the island’s different ethnic communities, to ensure that Sri Lankan Tamils have a clear account of atrocities by the LTTE that can’t be dismissed as pro-government propaganda, and, crucially, to discourage other governments from using indiscriminate and disproportionate force in their own particular “wars on terrorism”

2. The domestic option – the "Lessons Learnt and Reconciliation Commission" (LLRC)

In response to calls for an independent and international inquiry into allegations of war crimes, the government of Sri Lanka established in May 2010 its own “Lessons Learnt and Reconciliation Commission”. The Sri Lankan government argues that the commission – appointed by President Rajapaksa and known as the LLRC – should be given a chance to look into the causes and consequences of the final years of the war and to find ways of fostering reconciliation. It is a grave mistake, however, to think the LLRC has any chance – or intention – of addressing the many allegations of serious violations of international humanitarian law or helping to bring to account those responsible.

As Crisis Group argued in a joint letter with Amnesty International and Human Rights Watch last October, the LLRC is fatally flawed as an accountability mechanism: most of the members of the supposedly independent commission have close ties to the government (the chairman is a personal friend of President Rajapaksa); there is no system in place to protect witnesses who might wish to testify about crimes committed by government forces; and, crucially, the commission’s mandate includes nothing about investigating or seeking to hold people to account for alleged war crimes or serious human rights violations. While the commission has recommended the government take action on these cases, no progress has in fact been made.

Now that the LLRC has completed its six months of public hearings – it is due to report to the President by the middle of May – our scepticism has been proven correct. This is despite the bravery of thousands of Tamils who testified or lodged complaints with the LLRC during its hearings in the north and the east of Sri Lanka. Hundreds pleaded with the commission to assist them in getting information about missing family members – many of whom were last seen being taken away by government forces.

When presented with partial and distorted testimony by government and military officials, on the other hand, the commissioners did little to question the official line. They refused to challenge government claims that the final months of the war were a "humanitarian rescue mission" in which the government successfully followed a policy of "zero civilian casualties". Nor have they taken any steps to follow up on the large amount of publicly available information about violations of international humanitarian law.

The government has made much of the “interim report” the LLRC presented to the president in September, and the special inter-agency committee formed to implement the LLRC’s recommendations. Most of the LLRC’s recommendations – on insuring language rights, on disarming pro-government Tamil paramilitaries, on releasing the names and speeding the release of those held in detention, and on insuring transparency of policies on land in the north and east – are sensible. They are at best, however, very modest reforms that should and could have been implemented long before. Indeed, the recommendations largely consist of requests to the government to implement existing laws and regulations. Most important: none of the recommendations address or will do anything to promote accountability for alleged war crimes and serious human rights violations.

If the LLRC were committed to making the most of their modest powers, there are, in fact, some first humanitarian steps they could recommend to the government that would help begin the process of inter-ethnic reconciliation while also laying some of the groundwork for legal accountability: these would include compiling and making available a full list of all those reported missing and all those detained by the government on suspicion of involvement with the LTTE (including hundreds detained for years without charge), issuing monetary compensation for deaths, injuries, and property destroyed and looted during the war, and ending the effective ban on Tamils in the north and east publicly mourning their dead

3. Sri Lanka’s long history of failed commissions and impunity

Strong scepticism about the LLRC has been warranted for another reason: Sri Lanka’s long history of failed commissions and the culture of impunity which their failure has encouraged. This impunity has only increased under the current regime, as revealed by the fate of the presidential commission of inquiry appointed by President Rajapaksa in late 2006 to investigate sixteen cases of political assassinations, massacres, and LTTE bomb attacks. Despite being overseen by a panel of international eminent persons, the commission's work was systematically undermined by the Attorney General's office and ended up investigating only a handful of cases. (The Attorney General at the time is now the chairman of the LLRC.) The international observers resigned en masse in protest in early 2008. The commission's report to the President has never been made public. There have been no prosecutions in any of the cases that implicated government or pro-government forces.

Most notable before this were the four commissions established in the mid-1990s by President Kumaratunga to investigate the tens of thousands of enforced disappearances from the late 1980s and early 1990s. Despite independent and dedicated commissioners who produced valuable reports, no successful prosecutions came from the work of these "disappearances commissions," and almost none of their valuable recommendations for the prevention and more effective prosecution of disappearances were ever adopted by the government.

The institutionalisation of impunity for human rights violations directly contributed to the ability of the government to violate so wilfully the laws of war in 2009 and to suppress attempts to report on and challenge these violations. It also contributed to the impunity with which the LTTE was able to abuse its captive population ofTamils in the north, after years of violating the rights of individuals from all communities throughout the country.

The systematic and deliberate undermining of the rule of law has, if anything, accelerated since the end of the war. Sri Lanka continues to see attacks on independent media, intimidation of civil society activists, violent repression of democratic protest, and the use of emergency law to arrest and intimidate political opponents. A flurry of killings and abductions in the town of Jaffna and other parts of the highly militarised north in late 2010 and early 2011 saw the murders of a number of people who spoke out against government policies. More recently, the government has launched a campaign, including investigations by the political arm of the police, against some of the country's few remaining high-profile pro-democracy and peace organisations.

With such deeply institutionalised impunity, it should be clear that there is no chance of the Rajapaksa government ever fairly investigating the strong evidence of war crimes against its forces. This is all the more the case since, as the US Ambassador to Sri Lanka explained in a cable to Washington later released by Wikileaks, the alleged crimes concern actions and policies devised and implemented by those at the highest levels of government, including President Mahinda Rajapaksa and his brothers Gotabaya and Basil, respectively Defence Secretary and Minister for Economic Development in the current government.

4. Beyond ‘war crimes’ – the need for a broader framework for international advocacy on accountability in Sri Lanka

Nonetheless, advocates for justice and sustainable peace in Sri Lanka need to be careful. However important it is to bring accountability for the many violations of the laws of war committed by both the LTTE and government forces, there is a real danger that too exclusive a focus on war-crimes investigations will distract from or undermine efforts to address a) the more general dismantling of the rule of law and b) the larger history of atrocities lived through by all of Sri Lanka's people.

It is important that international attention on Sri Lanka recognise clearly that all its communities have suffered and continue to suffer from impunity and the effective absence of legal avenues for redress. At the moment, there is very little space for domestic activism or protest on these matters. Expanding that space and supporting Sri Lanka’s small, multi-ethnic community of rights activists should be a top priority of international action. Unfortunately, the more emphasis has been placed on war crimes by foreign organisations and governments, the more domestic space to challenge impunity has shrunk (though whether this is cause and effect is hard to know).

Moreover, because almost all the civilian victims in the final months of the war were Tamils, and the only major leaders left to prosecute are Sinhalese government officials, calls for war crimes seem to many Sinhalese and government supporters to be one-sided. (This is in part because the government has granted extra-legal amnesty to the few senior ex-LTTE leaders who are alive, in exchange for various forms of cooperation with government policies.) The government has exploited this perception and uses the widespread spirit of triumphant Sinhala nationalism to rally public support against what they say are attempts by elements of the international community to overturn their hard-won victory over LTTE terrorists.

International debate and advocacy on Sri Lanka should thus consciously adopt a broader agenda, focusing not only on war crimes, but also on the need to re-establish democratic and liberal institutions throughout the country, to depoliticise the police and judiciary and end institutionalised impunity, to challenge widespread corruption, to demilitarise the north and east, and to develop a constitutional reforms to address the legitimate grievances of minorities while also reassuring the many Sinhalese and Muslims scarred by the brutality and terror of the LTTE's decades-long quest for a separate state

5. Truth and reconciliation

Part of this shift would be to acknowledge that 2009 is not the only year that needs to be investigated and better understood. However brutal, the final months of the war were only the most intense stage of more than forty years of war and insurrection, with many periods of terror and brutal counterinsurgency from which members of all communities suffered terribly. The history of atrocities on all sides needs to be investigated. This would require a proper domestic truth and reconciliation commission, which would need a broader mandate, better resources, a longer time scale and better thought-out procedures than the ad hoc and politically-inspired LLRC. Unfortunately, with a regime in power that is anything but favourable to truth and open discussion, such a process is unlikely to be established for years, if ever.

6. The Secretary-General’s panel of experts

For all the reasons above, one can hope that the panel of experts appointed by Secretary-General Ban Ki-moon to advise him on accountability in Sri Lanka, which is due to deliver its report in mid-April, will recommend the establishment of an international commission of inquiry. To date there is little sign that either the Security Council or the Human Rights Council would be willing to appoint such a commission. Both bodies failed abysmally to use their powers to protect civilians in the final months of war in 2009, and little suggests they would act more responsibly today. The most politically realistic route to a commission of inquiry would therefore be for the Secretary-General to directly appoint a commission himself. This act would be fully within his powers, despite attempts by the Sri Lankan government to argue otherwise.

Unfortunately, a number of influential foreign governments, including both the United States and Great Britain, continue to resist calling for an international commission of inquiry. They continue publicly to hold out hope – despite all the evidence to the contrary – that the LLRC could somehow contribute to accountability for alleged war crimes. They say they want to avoid “prejudging” the work of the LLRC or the possibility of another more robust domestic accountability mechanism. Yet as many diplomats will acknowledge in private, there is virtually no chance of the LLRC making any significant contribution towards acknowledging or holding anyone to account for the crimes committed in the final months of the war.

That said, if foreign governments want to support positive ways of addressing Sri Lanka’s legacy of violence and injustice, there is nothing inconsistent with supporting an international war crimes inquiry while also encouraging Sri Lanka to pursue reconciliation through the work of the LLRC or, better yet, through a new, less ad hoc and better resourced processes.. Reconciliation and accountability are different issues and require different roads to be reached. Both are needed. Yet it should be clear to anyone who follows Sri Lanka that the government has no intention of pursuing accountability – and that efforts to pursue reconciliation are still underdeveloped, far from the government’s priority, and will take a long time even with the best of intentions.

7. Repudiating the ‘Sri Lanka Option’: beyond the critique of double-standards

Finally, many in Sri Lanka argue that Western nations and international bodies have no right to press for an international inquiry into allegations of war crimes in Sri Lanka because there have been no such inquiries into the many allegations of civilian deaths, torture, and other serious violations of the laws of war in Afghanistan, Iraq and other sites of the Western-led "war on terrorism". While there is no question that the US, the UK and other states are guilty of double-standards, international conflict resolution and human rights advocates can't be held hostage by the institutionalised hypocrisy of states. Political obstacles to getting a proper investigation into violations of the laws of war and possible war crimes committed by Western military forces are no reason to stand idle vis-a-vis Sri Lanka. Indeed, the Sri Lankan government is itself guilty of its own blatant double-standard: it condemned the violence in Gaza in January 2009, called for a ceasefire, and supported the establishment of the Goldstone commission by the UN Human Rights Council.

What’s more, when comparing Sri Lanka to other apparently similar situations of counter-insurgency, it is important to understand the extreme horror of those final months of combat: the intensity of civilian suffering, the number of those likely killed in just four months – anywhere from 20,000 to 40,000 and possibly more – the blatant disregard for core principles of international humanitarian law, especially regarding hospitals and humanitarian access, and the absolute unwillingness of the Sri Lankan government to admit any wrongdoing or responsibility for the suffering of their own citizens. All the available evidence suggests the period of January to May 2009 in northern Sri Lanka saw some of the worst civilian suffering in recent history. It was clearly on a different scale than what took place in Gaza at the same time, and arguably worse than what seems to be taking place in Afghanistan, however much those situations are also deserving of serious independent and international investigations.

Hence the responsibility of all concerned is to repudiate, rather than promote the “Sri Lanka option” for ending insurgencies. This extends to the Sri Lankan military’s upcoming conference on “‘Defeating Terrorism – The Sri Lanka Experience’, scheduled for late May in Colombo. Billed as “an international seminar to share Sri Lankan experience on the road to military defeat of the world’s most ruthless terrorist organisation”, Sri Lanka has invited the world’s militaries to come and study the lessons of their victory over the LTTE. Given the strong evidence that the Sri Lankan military committed grave and systematic violations of laws of war, and given that it continues to actively resist any credible investigation of its and the LTTE’s actions, no government that respects the Geneva Conventions and principles of international humanitarian law should allow its military leaders to attend.

(Alan Keenan is Senior Analyst and Sri Lanka Project Director with the International Crisis Group. This text is a revised version of a presentation made as part of a live web seminar on "Accountability for Violations of IHL in Counterinsurgency: The Case of Sri Lanka", organised by the Harvard Program on Humanitarian Policy and Conflict Research, on 24 February 2011)