Colombo Telegraph

To Stop Impunity & Recurrence, Major Perpetrators Must Be Prosecuted On Both Sides

By Laksiri Fernando

Dr. Laksiri Fernando

There is no conclusive evidence to say that punishments alone can deter recurrence of human rights violations or war crimes. However, without a comprehensive system of punishments there is no other way to move towards deterrence in preventing continued violations and crimes, whether ‘ordinary’ or war related. Rehabilitation and/or reform measures alone might not work without a measure of punishments. All adults in society should be able to, educated to and compelled to take full responsibility for their actions.

The UN “Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity” in 1968 stated the following:

“The effective punishment of war crimes against humanity is an important element in the prevention of such crimes and the protection of human rights and fundamental freedoms.”

The sole purpose of disregarding the usual ‘statutory limitations’ in that Convention alone was to recognize this fact. This was the same principle reiterated in the Rome Statutes for the International Criminal Court (ICC) three decades later in 1998. Those who admire human rights, justice, non-violence, reconciliation and lasting peace should not blink on this matter.

Two Examples

There were at least two major incidents that showed the danger of impunity and, more particularly, the failure to conduct proper and frank investigations on what happened during the ‘last stages of the war.’ This was the failure of accountability that the former president Mahinda Rajapaksa, in fact, promised before the UN Secretary General in May 2009.

This is not about the Americans or the international community, this is about ‘Us.’

The first incident that proved the danger of impunity was the unprovoked army shooting in Weliweriya in July 2013. The second, within four months in November, was the killing of 27 inmates to quell a prison riot at the Welikada prison. In addition, continuous violations were reported, or alleged, in the Northern parts of the country until recently, under the indirect army rule.

The major offence of the authorities immediately after the end of the war was to place the same commanders/soldiers who were suspected of atrocities at the last stages of the war in the northern districts. This was like taking revenge and punishing the innocent civilians. Who was responsible for this offence is an open secret. We should raise this question directly to the former Secretary of Defence.

The connection between impunity and recurrence is very clear from the following observation, aftermath of the Weliweriya shooting, from Dayan Jayatilleka (Colombo Telegraph, 2 August 2013) of that moment.

“The obvious observations will be, if this is how the State authorities treat unarmed Sinhalese, largely Buddhist civilian men, women and children who are protesting against polluted water, how must that state have treated the Tamils in the closing stages of the war?”

Investigating the LTTE

The importance of investigating the last stages of the war is that the main perpetrators, on the part of the armed forces, are still living and perhaps in higher positions in the army and other armed forces. It is not only about ‘deterrence’ but also about ‘army discipline’ and the need to have a ‘professional and a respectable army.’ In the same vein, the fact that most of the leading LTTE perpetrators are dead is no reason not to prosecute the others or the second level commanders. There are some key people still living and operating, inside and outside the country. Only leniency could be for the former ‘child soldiers’ who could be both ‘victims and perpetrators.’

The recommended period given by the UNHRC resolution for the judicial investigations is from 2002 to 2009 which supply ample space for major violations of the LTTE to be investigated. These include the violations of the Ceasefire Agreement (CFA) in addition to others. In all investigations, the scales should be balanced and the ‘Lady Justice’ should be blindfolded. This is why the involvement of international (or commonwealth) judges and credible personnel would be most important. After all, this was an internal armed conflict or civil war involving the state armies as one party although the government had all legal and moral right to bring down the internationally condemned terrorist organization, the LTTE. However, that is not a reason to commit human rights violations or war crimes on the part of the soldiers or the commanders, or the decision makers above them.

There can be a possibility of prosecuting the LTTE as an organization for perpetrating war crimes. If at all possible, it should be done. For example, the Nuremberg Trials were empowered to rule on the criminality of organizations. The prosecution of ‘legal persons,’ to mean the organizations (in contrast to ‘natural persons’) were contemplated even when the Rome Statutes were drafted for the International Criminal Court (ICC) during 1996-1998. However it was later dropped for lack of consensus among those who involved in the drafting process of the Rome Statutes. This is also an indication that all existing international laws on the subject of human rights violations or war crimes are not sacrosanct. The possibility of re-emergence of LTTE terrorism cannot be underestimated in the long run or in the medium term.

The prevention of recurrence of war crimes also should include the prevention of recurrence of terrorism. What can be seen in Sri Lanka is some of the main perpetrators becoming political allies after some time, and impunity continuing unabated as a consequence. The cases of Karuna, Pillayan and KP are some examples. The repeated excuse appeared to be that the existing national legislation was insufficient to prosecute them. The excuses usually came from the Attorney Generals’ Department whether under direct duress or not. This is one reason why the ‘war crimes,’ ‘crimes against humanity’ and ‘genocide’ in addition to the ‘crime of terrorism’ should be part of our national legal system. However, in the case KP, I could clearly remember how Gotabaya Rajapaksa became pally with KP after he was brought down to Sri Lanka after much effort.

MR’s Futile Arguments

The former President, Mahinda Rajapaksa, who was the Commander-in-Chief during the last stages of the war has given three main reasons why he opposes the UNHRC resolution of which the present government has also cosponsored.

First is the participation of foreign judges and prosecutors in a ‘Sri Lankan judicial mechanism’ that has been proposed for the investigations of human rights violations and possible war crimes (Operative Paragraph 6). As it has been already pointed out (Manekshaw, Ceylon Today, 26 September 2015) this is not the first time that foreign or commonwealth judges were involved in judicial processes. One example is the investigation on Denzil Kobbakaduwa et al ‘assassination.’ Even for the Rajapaksa appointed Paranagama Commission last year there were three foreign experts closely involved.

The appointment of foreign judges and experts in a Sri Lankan mechanism would lend ‘credibility and reliability’ as any such mechanism should be independent and impartial. It has to be frankly admitted that the independence and impartiality of even the formal judiciary have eroded during the last decade or so and purely local judges, investigators and personnel therefore would not earn the necessary international respect. Most importantly, major human rights violations and war crimes are not purely matters of national jurisdiction. They are major concerns of the international community, international law and international jurisdiction. What has been achieved through the UNHRC resolution, right or wrong, is a compromised or a middle path solution.

Second objection of MR is for the proposal to remove the individuals who are in the armed forces suspected of human rights violations through administrative vetting even without or before judicial procedures (Operative Paragraph 8). The validity of this proposal is convincingly proven by the recent most judgement by the High Court of Jaffna against four army personnel who were convicted for raping and sexually harassing two women in Wiswamadhu, Mullattivu, in June 2010. This is also what MR and his brother failed to accomplish aftermath of the war before placing soldiers, commanders and battalions in the north. They should have been thoroughly screened for possible violations and at least misconduct. They all were called ‘war heroes.’ If MR and GR were still in power even the above mentioned judgement could not have come about.

Third objection is for the government’s willingness to obtain financial assistance for the process of ‘reconciliation, accountability and human rights’ as welcomed in the UNHRC resolution (Operative Paragraph 4). This objection is based completely on a ‘conspiracy theory of Westerners’ on all matters of human rights and human rights investigations. Wimal Weerawansa is the main ‘circus clown’ jumping up and down on this matter in Parliament! Ironically, it is in the same statement that MR has admitted obtaining US $ 500 million from Muammar Gaddafi in 2009 for whatever the reason. That cannot be for the ‘promotion of human rights or reconciliation’ for sure. But MR’s main objection is for the other two reasons, and particularly, for the prosecution or removal of those who are implicated in human rights violations and possible war crimes as shown in the following argument.

“The first duty of the Sri Lankan government is to see to it that the interests of our war heroes are looked after.  Operative paragraphs 6 & 8 of the resolution run directly contrary to that sacred duty.”

Defence of War Criminals?

It is very clear that when MR talks about ‘our war heroes’ he doesn’t mean the overwhelming majority of the disciplined and professional soldiers or the commanders, but a small minority of offenders most possibly motivated by ‘racist’ orientations or criminal proclivities. It is the perpetrators of violations who would be under investigation under the UNHRC proposed mechanism and not all or the majority. As a former president, MR should know this better. He is attempting to safeguard the perpetrators under the rubric of ‘war heroes.’

‘Castro’ Dharmasena, now ‘Anagarika,’ has revealed how many ‘motivational’ or rather ‘emotional’ speeches that he delivered to the soldiers during 2005 and 2009 (Divaina, 5 October 2015). This chauvinist drum beating is still carried through ‘Divaina’ and even ‘The Island’ newspaper. During 1995 and 2005 there were commendable efforts to educate the army commanders and the soldiers on human rights and international humanitarian law (HR & IHL). I was a regular invited lecturer on the subject. But these became abandoned after 2005 and instead, it appears, that the soldiers and commanders were instilled with emotional nationalist or even ‘racist’ rhetoric. Dharmasena was only one instigator.

During a civil war, on the part of the state armies or insurgent militias, the violations of human rights or war crimes cannot happen merely by accident. Pure collateral damage is completely a different matter, and most often an excuse. For example, the LTTE massacres in Anuradhapura, Aranthalawa or the attack on Dalada Maligawa cannot be considered accidents. Those are purposeful and motivated violations. The old theories of ‘liberation struggles’ or ‘liberation theology’ or the ‘sovereign rights’ on the part of the state are not valid today or acceptable. One may argue that the violations by the LTTE in the past, prior to 2002, are not going to be investigated under the present UNHRC resolution. There is no doubt that if the whole history of violence and violations could be investigated and recorded, it would be useful for posterity. However, it is not the immediate task.

Sri Lanka has seen spiralling cycles of violence and violations since 1970s. A major reason for that continuity and exacerbation has been the continuous impunity. There were two instances of passing indemnity acts in Sri Lanka to safeguard the perpetrators on the part of the armed forces in 1982 and 1988. Although they were for limited periods, those were the legal/political circumstances under which armed forces and the police used to act with impunity. Even today there are proposals to bring a new indemnity act to safeguard the perpetrators on the part of the armed forces. This is most obnoxious in the context that the new government has promised to prosecute the perpetrators, among other measures of reconciliation and reform etc. by co-sponsoring the UNHRC resolution. We still have to keep our fingers crossed however. There seems to be some vacillation on the part of some sections of the government.

UNHRC Resolution

The most important operational paragraph of the UNHRC resolution is the following in respect of what we have discussed here in this article.

“Welcomes the government’s recognition that accountability is essential to uphold the rule of law and build confidence in the people of all communities of Sri Lanka in the justice system, takes note with appreciation of the Government of Sri Lanka’s proposal to establish a Judicial Mechanism with a Special Counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable; and affirms that a credible justice process should include independent judicial and prosecutorial institutions led by individuals known for integrity and impartiality; and further affirms in this regard the importance of participation in a Sri Lankan judicial mechanism, including the Special Counsel’s office, of Commonwealth and other foreign judges, defence lawyers, and authorized prosecutors and investigators”.

Accountability is essential and the resolution says the government has recognized it. It is essential to uphold the ‘rule of law and build confidence in the justice system among all communities’ which is undeniably true. Many social surveys have shown that people and particularly the youth have lost or increasingly losing confidence in the prevailing ‘rule of law’ and/or the ‘justice system.’
The above paragraph is also a compromise to allow the Government of Sri Lanka ‘to establish a Sri Lankan Judicial Mechanism.’ It is very clear by word and intent. What would be the composition of the proposed mechanism? (1) There would be a “Special Counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable.” (2) In addition to the Special Counsel, it emphasises the “importance of participation in a Sri Lankan Judicial Mechanism, including the Special Counsel’s office, of Commonwealth and other foreign judges, defence lawyers, and authorized prosecutors and investigators.”

It is very clear that what is proposed is not an international mechanism or tribunal like what was instituted for former Yugoslavia or Rwanda. It is also not really a Hybrid mechanism as what was proposed initially by the UN Commissioner for Human Rights or what was instituted in East Timor, Cambodia or Sierra Leone. A proper hybrid mechanism comes about through an agreement between the country concerned and the UN. The appointments to the courts or judicial mechanisms are also done jointly. What has been proposed and agreed for Sri Lanka is a desirable solution where the primary authority is left for the Sri Lankan government to decide but the external element cannot completely be denied. Sri Lanka is urged to appoint ‘commonwealth and other foreign judges, defence lawyers, authorized prosecutors and investigators’ as mentioned before. However all appointments will be finally left with the Sri Lankan government.


There cannot be any hesitation on the part of those who support and admire human rights, accountability, justice, reconciliation, non-violence and long-term peace in supporting the government in genuinely implementing the UNHRC resolution that it has cosponsored. Whatever the weaknesses, imbalances or operational hurdles in the resolution, those should be sorted out within the process of its implementation. The resolution addresses many issues of ‘reconciliation, accountability and human rights’ and this article focussed mainly on the accountability concerns. Accountability in this context means investigation and prosecution of major perpetrators. Impunity and indemnity have been the main reasons for the recurrence of major human rights violations and war crimes in the past in Sri Lanka since early 1980s and this vicious cycle has to be broken, and broken decisively. There is nothing wrong in beginning the implementation of the resolution with ‘soft’ areas.

However, the crucial or hard issues of accountability and justice have to be addressed without delay. It would be better to have a ‘comprehensive plan’ for the implementation of the resolution sooner without venturing into ad hoc implementation.

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