By K. Mukunthan –

Dr. K. Mukunthan

President Sirisena’s recent public statement that he will make a special request to the UN General Assembly and the UN Human Rights Council (UNHRC) to drop war crimes charges against his troops to ‘settle’ the issue of accountability is outrageous and must be censured. It is also feared that President Sirisena’s calculated plan is to link the release of the long-held Tamil political prisoners who are yet to be charged, to a general amnesty for all including those from the military responsible for brutality, mass killings and war crimes. All those who want to see Sri Lanka transformed to a reconciled, peaceful and prosperous country, overcoming its tragedies of the past, need to condemn such approach to accountability and call on the international community to thwart any such misplaced and short-sighted attempt at its infancy. 

The national conflict in Sri Lanka is replete with instances of Sri Lankan governments making commitments to address minority communities’ concerns, and then abandoning them at the slightest of opposition from the hard-line elements of the majority community. The difference this time being the commitments were made to the international community to administer justice, but its untrustworthiness is receiving world-wide publicity. Concerns about trust were raised when Sri Lanka co-sponsored the 2015 UNHRC resolution, but this was famously countered by the then Foreign Minister saying, “Don’t judge us by the broken promises, experiences and U-turns of the past.’ Alas, the country appears to have not moved away from its past, irrespective of all the promises made by the new coalition government that came to power the same year.

Despite Sri Lanka’s attempt to conduct the last stages of the war without witnesses, including by ordering the withdrawal of the UN and other international aid agencies in war zones, evidence of brutality came to light in the form of videos and photographs and victim statements after the conclusion of the war. The systematic violence – sexual abuse and cold-blooded execution of war surrendees, indiscriminate shelling of hospitals and safe zones, and denial of desperately needed humanitarian assistance – pricked the conscience of the world, and made to realise its failure to prevent tens of thousands of deaths, mostly Tamil citizens, in the hands of the country’s security forces. Sri Lanka’s continual denial, intransigence, as well as its refusal to honour the agreement with the then UN Secretary General Ban Ki Moon to address war time accountability issues, triggered a series of international and UN initiatives. 

The UN Secretary General appointed a Panel of Experts (2011) to address accountability issues related to alleged war time abuses, and an Internal Review Panel (2012) to prevent the repetition of the Sri Lanka-type failure. Former UN High Commissioner for Human Rights, Navi Pillai, was instrumental in setting up the OHCHR Investigation on Sri Lanka (OISL), in 2014, under the guidance of eminent international jurists. The conclusions of these investigations were unambiguous – “…. there is credible evidence that war crimes and crimes against humanity were committed by all parties to the armed conflict that need to be tried by internationalised special court.”  

A core group of countries consisting of US, UK, Macedonia and Montenegro provided leadership at the UNHRC to help Sri Lanka deal with its painful past. The UNHRC resolutions of 2013 and 2014 urging the government to take steps to promote accountability and reconciliation were passed without Sri Lanka’s consent. However, with the formation of the new government in 2015 – mandated for Good Governance – Sri Lanka adopted a different approach by co-sponsoring UNHRC resolutions (2015 and 2017) extending cooperation, albeit slowly. These resolutions on ‘promoting reconciliation, accountability and human rights’ (30/1 and 34/1) were in fact compromised outcomes, with the adoption of establishing a Sri Lanka based judicial mechanism – including participation of foreign judges, prosecutors and investigators. Former UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, consistently argued for the establishment of such a specialized court supported by international practitioners. Firmly convinced that progress has virtually stalled, in 2017 he called on the member states to explore other avenues, including the application of universal jurisdiction, to press for accountability. 

The commitment and conviction of the Sri Lankan government to implement the UNHRC resolutions have been lacking, despite the veneer of civility. Every notable step, such as operationalising the Office of the Missing Persons (OMP), was taken after years of delay but invariably days before the commencement of a UNHRC session, aiming mainly at managing international expectations for the moment. With regards to the crucial aspect of asserting criminal culpability, three years after sponsoring the 2015 resolution, no court has been set-up, not a single indictment served, and no one brought to justice. Even in the emblematic cases – the killings of 5 students in Trincomalee; the massacre of 17 aid workers of the French charity ‘Action Against Hunger’ in Muttur (both in 2006); and the execution-style murder of the high-profile journalist Lasantha Wickrematunge (2009) – the progress is almost zero and in essence for ‘show’. Those responsible for these dastardly crimes remain free; some indictable offenders continue to occupy high government positions and some others with ambitions for higher offices. It is in this context that President Sirisena is making attempts to drop war crimes charges against Sri Lankan armed forces, apparently as a concession for the ‘progress’ his government has made!

In dealing with international crimes the world has made leaps of progress during the last seven decades – International Military Tribunal, International Criminal Court, ad hoc International Criminal Tribunals and Hybrid Special Courts. For serious international crimes, such as crimes against humanity and genocide, states can no longer use sovereignty as a defence and individuals can’t hide behind state responsibility. It is precisely crimes of this nature that were committed in Sri Lanka and the country appears to have wasted an opportunity to address the problem on its own or with international support and participation. 

Even the thought of President Sirisena receiving UN consent to abandon Sri Lanka’s international commitments is unconscionable and can lead to irreparable damage to peace and justice in the country, with unforeseen outcomes for the world at large. No doubt it will lead to the alienation of the Tamil community and its political leaders, effectively extinguishing the prospect of reconciliation. International efforts will intensify to apply universal jurisdiction and economically isolate Sri Lanka. Its rehabilitation into respectability that began after 2015 will start to recede, leading to long-term damage to peace and prosperity. 

More importantly, any success by the Sri Lankan president in this regard will convey a wrong message to other budding dictators and military regimes with despicable human rights record that they can live out international focus and resolutions without serious consequences. In other words, despite the progress in universalising human rights and rule of law, enough holes exist for bad behaviour and inhumanity – a dangerous precedent indeed.

Outright rejection of President Sirisena’s ill-conceived initiative will indeed be a victory for decency, justice and humanity of the world, in particular for the citizens of Sri Lanka.

Dr K. Mukunthan is one of the Executive Directors of the Australian Tamil Congress (ATC). He is also a Director of Global Tamil Forum (GTF) where he is a Senior Member of the Strategic Initiatives Team.