The three-member UN panel rejected Sri Lanka’s two-pronged notion of accountability that focussed on the responsibility of past Governments and of the LTTE, saying that the approach “does not envisage a serious examination of the Government’s decisions and conduct in prosecuting the final stages of the war or the aftermath, nor of the violations of law that may have occurred as a result.” International standards mandate that any approach to accountability should “place the rights and dignity of the victims of the conflict at the centre,” the panel said, and explained to Colombo that “[a]ccountability for serious violations of international humanitarian or human rights law is not a matter of choice or policy; it is a duty under domestic and international law.”
The report referred to the appearance of a Sri Lanka delegation in front of the panel, confirming media speculation of the clandestine meeting where the delegation allegedly explained the accountability approach Sri lanka was taking.
“The Panel clearly seems unconvinced by the delegation’s explanation, and appeared to be giving a Accountability 101 lesson to Colombo and the policy wonks who have been unashamedly defending Colombo’s flawed approach to escape international opprobrium,” said a spokesperson for Tamils Against Genocide (TAG), a US-based activist organization working to enforce war-crimes accountability using the judicial instruments of the West.
“[A]accountability goes beyond the investigation and prosecution of serious crimes that have been committed; rather it is a broad process that addressed the political, legal and moral responsibility of individuals and institutions for past violations of human rights and dignity,” the panel writes in the report.
“[A]ccountability necessarily includes the achievement of truth, justice and reparations for victims. Accountability also requires an official acknowledgment by the State of its role and responsibility in violating the rights of its citizens, when that has occurred,” the panel adds.
The panel debunked the theory on justice Colombo was attempting to advocate, perceiving Colombo’s approach as a rudimentary effort to whitewash war crime accusations. The discussion was based on the “retributive” and “restorative” theories of justice.
Two available common forms of justice can be explained as:
Retributive justice (punishment-based justice), advanced by German philosopher Immanuel Kant, considers that punishment, if proportionate, is a morally acceptable response to crime, with an eye to the satisfaction and psychological benefits it can bestow to the aggrieved party, its intimates and society.
Restorative justice advocates institutionalizing peaceful approach to harm, and violations of human rights. Resolutions engage those who are harmed, wrongdoers and their affected communities in search of solutions that promote repair, reconciliation and the rebuilding of relationships.
Colombo explained that they were trying to “balance reconciliation and accountability with an emphasis on restorative justice,” meaning, any effort to pursue war-crimes might result in incriminating “individuals” that would be harmful for “reconciliation.”
The panel countered, “[t]he assertion of a choice between restorative and retributive justice presents a false dichotomy. Both are required. Moreover, in the Panel’s view, the Government’s notion of restorative justice is flawed because it substitutes a vague notion of the political responsibility of past Government policies and their failure to protect citizens from terrorism for genuine, victim-centred accountability focused on truth, justice and reparations.”
The panel concluded: “The Government’s notion of accountability is not in accordance with international standards. Unless the Government genuinely addresses the allegations of violations committed by both sides and places the rights and dignity of the victims of the conflict at the centre of its approach to accountability, its measures will fall dramatically short of international expectations.”
TAG spokesperson added, “a restorative justice solution for Mu’l’livaaykkaal will not provide the deterrence, incapacitation, and accountability that the degree of the GoSL’s violations of international humanitarian law call for. The regime’s argument alleging to balance needs of accountability with reconciliation is pretext for insulating regime survival from the consequences of an arguably genocidal counter-insurgency.”