“The only thing necessary for the triumph of evil is for good men to do nothing.”- Edmund Burke
Elections and the Engineers of Mass Atrocities
Sri Lanka, a country currently under international scrutiny for its violation of international humanitarian law and human rights law during the final phase of the war in Mullivaaikaal in the country’s north, is preparing for its seventh presidential election scheduled to be held on 8 January 2015.
Three consecutive resolutions concerning wartime mass atrocities and accountability in Sri Lanka were adopted respectively in March 2012, March 2013 and March 2014 at the UN Human Rights Council. In addition, two high-level detailed reports on war time atrocities and UN action in Sri Lanka have been published by the UN. These international steps have helped highlight the mass atrocities committed in Sri Lanka and the importance of addressing accountability and bringing perpetrators of these crimes to international justice.
Incumbent President Mahinda Rajapaksa, since coming to power in November 2005, has been the Minister of Defence and Commander in Chief of the armed forces, and is at the top of the chain of command responsible for mass atrocities committed by the country’s armed forces. Currently, he is contesting for his third term of presidency.
Maithripala Sirisena, once in the same party as Rajapaksa has been acting Minister of Defence during the peak of the offensive military operations. He has held this position at least five times throughout the armed conflict between the Sri Lankan government armed forces and Liberation Tigers of Tamil Eelam (LTTE). In November 2014, he defected from the government to contest against President Rajapaksa under the banner of being a common opposition candidate. Having played a key role in the chain of command, not only is he also responsible for crimes committed by the armed forces, but he has and continues to be a frontline campaigner against international justice mechanisms.
During the last presidential election in January 2010 the main challenger to President Rajapaksa had been former Army Commander General Sarath Fonseka, the man in charge of the Sri Lankan army throughout the last phase of the war. While he had lost the presidential contest in 2010 he has re-emerged to pledge his support to the January 2015 presidential election common opposition candidate. Their camaraderie extends back to the war with the common opposition candidate having stated in an interview, “I was the Minister in Charge of Defence during the last two weeks of the war in which most of the leaders of the LTTE were killed with General Fonseka at the helm of the Army.”
War victory and the execution of the last phase of the war seems to dominate the campaigns and propaganda of both main candidates in Sri Lanka’s presidential election, whether it be for the presidential election of 2010 or that of 2015. Each candidate has repeatedly self-proclaimed themselves as the ‘war hero’ in order to attract Sinhala Buddhist voters, grasping at the ‘war victory’ card which often plays a crucial role in the Sinhala voters’ mindset.
As for the ethnic Tamil voters, neither leading candidate are war heroes of any form, but rather perpetrators responsible for the death of thousands of Tamil civilians. The UN Panel of Experts (PoE) report published in April 2011 indicated that “there could have as many as 40,000 civilian deaths”. The report further elaborated, “Only a proper investigation can lead to the identification of all of the victims and to the formulation of an accurate figure for the total number of civilian deaths.” The UN internal review panel report published in November 2012 estimated that over 70,000 Tamil people were unaccounted for. The Bishop of Mannar Rayappu Joseph, after analysis of census statistics, came to the estimation that over 146,679 Tamil people in the Vanni were unaccounted for.
However, in Sri Lanka, the overwhelming majority of the Sinhala voters and the two main presidential candidates themselves, both of whom hold responsibilities in the chain of command in relation to mass atrocities, have not yet accepted the systematic killings of Tamil civilians.
Ironically though, expecting a close contest, both leading candidates are competing to get Tamil votes. President Rajapaksa visited Mullaiththeevu district, the very location where mass atrocities were committed during the final stages of the war, and campaigned asking the Tamil people to forget the past and vote for him. In an election rally in Jaffna he stated that “a known devil is better than an unknown angel.” Both leading candidates even visited Bishop Rayappu Joseph to get his ‘blessing’.
The Chain of Command and ICC
Incumbent President Rajapaksa is currently facing possible western isolation due to his brutality and his governance style of the country, which seems to be bordering towards dictatorship. His strategy has been to use western pressure on Sri Lanka to maintain democracy and accountability as a tool in order to gain votes from the Sinhala masses.
Throughout the election campaign he has continued to present himself as a victim of ‘international conspiracy’ and ‘international forces’ wanting to take him and Sri Lanka’s armed forces to the International Criminal Court (ICC). It should be noted that Sri Lanka is not a signatory to the Rome Statute. However, Sri Lanka’s Minister of External Affairs has stated that based on recent experience, Sri Lanka can still be vulnerable to ICC jurisdiction.
The President in his address at the first election rally said that the Hague had enquired about the chain of command of the Sri Lankan armed forces and that it was a strong indication that some sections of the “international community” were trying to prosecute the heads of the Sri Lankan military establishments. He also added that the “Sri Lankan government will not bow down for foreign interventions in the matter of the war victory.”
His speeches and campaigns have largely focused on claims of international conspiracies and war crimes charges against the Sri Lankan armed forces, and his determination to resist them.
In parallel, Jathika Hela Urumaya (JHU), an extremist Buddhist party and a key body backing the common opposition candidate expressed that both they and the common opposition candidate have agreed to oppose efforts to prosecute military authorities. General Secretary of JHU said, “We will not give room for international war crimes probe. Whether it is the President, the Defence Secretary (Gotabaya Rajapaksa), the then Service Commanders – Sarath Fonseka and Karannagoda or the likes of Shavindra Silva and Presanna Silva, we will not allow any of these people to be tried before the International Criminal Court (ICC).”
The election manifesto of the common opposition presidential candidate asserts that, “I will allow no international power to ill-treat or touch a single citizen of this country on account of the campaign to defeat terrorism”. He has also said, “I will not allow President Rajapaksa, his family or any member of our armed forces to be taken before any international war crimes tribunal.”
It is important to note that common opposition candidate Maithripala Sirisena, himself an alleged perpetrator of mass atrocities, could face justice in the future regardless of current international climate which may seem supportive of him today. In fact, the very day he was sworn in as the Minister of Defence, over 1700 Tamil civilians were reported to have been killed and 3000 injured by Sri Lankan government shelling within the space of 48 hours. Thousands more were killed in the days that followed. The infamous white flag incident too took place, while Sirisena was serving as the Minister of Defence.
In order to repel calls for an international investigation into wartime mass atrocities, Maithripala Sirisena stated that he will launch a domestic war crimes inquiry if he wins in the forthcoming election. An important question arises as to how an alleged perpetrator could establish a credible investigation mechanism and what form of justice the victims and survivors could expect from it. Infact, incumbent President Rajapaksa has to date already appointed a few domestic mechanisms with the inclusion of eminent international legal experts to handle the international pressure. However, these were not received well and instead were rather widely discredited by international actors who were already well aware of President Rajapaksa’s intention and strategy behind these initiatives. For the survivors and victims of these crimes, the Rajapaksa regime symbolises tyranny and mass atrocities. They have appalling and unforgettable experiences of mass atrocities and broken promises not only of the current regime, but also of each successive previous regime, leading them to have no faith in any domestic justice mechanism.
Lack of confidence in a domestic mechanism is not only from that of a survivor’s perspective. David Scheffer, the first U.S. ambassador-at-large for war crimes issues (1997-2001) wrote, “If the tribunals’ work had been left to domestic courts, particularly in devastated societies, there simply would not have been any justice at all.”
A gruelling battle is taking place in Sri Lanka between both leading presidential candidates despite certain factors which keep them united, such as ‘war victory’, denial of mass atrocities and rejection of an international investigation into such atrocities. Disturbingly all leading figures in the presidential debate are in competition with each other for self-proclamation and self-promotion in terms of credibility for the war victory, and complete denial of responsibility or acknowledgement of mass atrocities during the war. Sri Lanka’s history underlines consecutive governments have had a deliberate policy of destruction and degradation of the Tamil nation, very similar to the trend observed in Bosnia by United States Ambassador to the UN Samantha Power when she was covering the Bosnian war as a journalist.
Challenge to International Conscience and Justice
Hence, regardless of which leading candidate is to win Sri Lanka’s seventh presidential election, victims and survivors of mass atrocities will find it difficult to expect justice or a genuine and credible domestic mechanism into these heinous crimes. Considering Sri Lanka’s political dynamics, the culture of impunity in Sri Lanka will remain unchanged regardless of the outcome of the election. The colour may change but the cage will remain the same.
Therefore it is vital that a sustainable independent international investigation mechanism into mass atrocities be designed to deliver justice for the victims and survivors. On 3-6 December 2014 the International Nuremberg Principles Academy and the Wayamo Foundation hosted a two-day conference titled “Preventing Genocide and Other Atrocity Crimes: Challenges in Today’s World” and concurrent four-day journalism workshop.
During the conference, Adama Dieng, the Special Adviser to the UN Secretary-General on the Prevention of Genocide said that the, “UN Secretary-General had courage to accept UN failure in SriLanka”. Following the event, he also said that the killing of thousands of Tamils “under our eyes” during the end of the armed conflict in 2009, was a “failure of the international community”. Speaking at the same conference, Margit Hellwig-Botte, Head of Division (Conceptual Issues and R2P), UN Department, Federal Foreign Office, Germany said, “Never again triggered again due to UN failure in Sri Lanka” in 2009. In September 2014, the US had said that several lives could have been saved had the global community acted earlier and more appropriately to situations in some troubled nations such as Sri Lanka.
After execution of mass atrocities and their failure to stop it, international actors have accepted their failure. Time has arrived for course correction, and Sri Lanka’s forthcoming presidential election will be the litmus test for it, and a challenge to international conscience. Will international actors bring perpetrators of mass atrocity crimes in Sri Lanka to international justice and prove “Never Again” to be more than just a slogan?
 David Scheffer, All The Missing Souls: A Personal History of the War Crimes Tribunals, Princeton University Press, Princeton and Oxford, 2012.
 Samantha Power, A Problem from Hell: America and the Age of Genocide, Harper Perennial, London 2007