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FeaturesNewsWhat More Congress (and the Administration) can to to promote Accountability in Sri Lanka [Road Map I]

What More Congress (and the Administration) can to to promote Accountability in Sri Lanka [Road Map I]

Vanni, Sri Lanka 2009

Ryan Goodman

The Obama administration has taken the lead internationally to promote accountability in Sri Lanka. The principal focus is on war crimes and crimes against humanity committed during the country’s decades long civil war. But those efforts are also important to addressing the situation of Tamil, Muslim, and Christian minorities in Sri Lanka today.

 Congress has also played an important role. It has restricted military and financial assistance, and individual congressional members have distinguishedthemselves through a variety of statements and initiatives.
The lack of accountability in Sri Lanka, however, is worsening. Following her visit there, the UN High Commissioner for Human Rights stated that the country is “showing signs of heading in an increasingly authoritarian direction” (see also this International Crisis Group report). According to the State Department, the main targets of human rights violations are “civil society activists, journalists, and persons viewed as sympathizers of the Liberation Tigers of Tamil Eelam terrorist organization.” As the State Department further explains, violence against Muslim and Christian minorities is also an increasing concern due to “a serious escalation in the number of attacks by extremist Buddhist groups, many with direct ties to high government officials” (my emphasis added). In short, impunity (for war crimes) begets impunity (for ongoing violations). And in Sri Lanka today, a climate of impunity reigns.
But what more can the US government and members of Congress do? I was invited to give a presentation at a congressional briefing hosted by the Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka last week. This post is based on my remarks, and their further refinement in light of discussion at the briefing. [In a subsequent post, I will outline a second aspect of my remarks: legal avenues the United States could pursue against U.S. citizen and Sri Lanka’s Secretary of Defense to the Minister of Defense, Gotabaya Rajapaska (for earlier coverage, see here, here & here).]
Here are my thoughts on additional steps for Congress and the Executive Branch.
1. Further promote efforts at the United Nations
Example: H.Res. 247 and S.Res.348 are important, bipartisan initiatives. Both pieces of draft legislation convey support for an international investigation into the commission of war crimes and crimes against humanity.
Additional steps:
a. New UN investigation
Key language in H.Res. 247 and S.Res.348 should be reworded to reflect support for the recently created UN investigation, which is an effort that the US government spearheaded in a March 2014 UN resolution, along with other partners such as the United Kingdom and a range of co-sponsors.
Explanation: The current wording of both the House and Senate drafts is phrased prospectively. H.Res. 247 “calls for the establishment of a credible, international, independent accountability mechanism to look into allegations of war crimes, crimes against humanity, and other human rights violations.” S.Res.348 has almost identical language. The latter also refers approvingly to the UN Human Rights Council’s 2013 Resolution, rather than 2014 Resolution which established the international accountability mechanism.
b. Naming names
Congress could convey support specifically for the UN investigation to produce a list of named individuals (on both sides of the conflict) for whom there is sufficient evidence of criminal responsibility.
Explanation: There is ample precedent for such a result. For example, the UN’s commission of inquiry on Syria and the UN Commission on Darfur presented sealed reports to the UN identifying suspected government officials. The UN already conducted a significant inquiry into Sri Lanka, and thus naming individuals who should be held responsible is one of the next, most important steps that this new body could take.
c. Witness protection
Congress could encourage the US administration, and other governments who have supported the UN inquiry, to develop immigration safeguards (e.g., asylum, withholding of deportation, special visas) and witness protection measures for individuals who provide valuable information to the UN investigators.
Explanation: Many individuals would now like to come forward with direct information concerning some of the most important cases of international crimes committed in Sri Lanka. Witness protection is especially important for Sri Lankans due to reports of “widespread harassment and intimidation targeting human rights defenders, activists, lawyers and journalists, including reprisals against those who engage with the United Nations human rights mechanisms” (UN Office of High Commissioner report 2014).
d. Intelligence sharing
Congress could encourage the administration to share with the UN investigators, as much as possible, intelligence and other information that the US administration possesses about specific individuals’ culpability (the most difficult evidence for the investigation team to obtain on its own).
2. Travel restrictions
It would be highly valuable for the United States to send a message of accountability through the use of travel restrictions. An exemplary piece of draft legislation is H.Res.587(introduced by Rep. Rush Holt). The key part of the text states:
“Recommends that the Department of State restrict U.S. entry for anyone responsible for war crimes and crimes against humanity.”
It deserves the support of Congress and, at the very least, all of the Republican and Democratic cosponsors of S.Res.348 and H.Res. 247.
3. More balance in resolutions
Congressional resolutions are more effective politically, and match US diplomatic efforts, if they recognize crimes committed on both sides of the conflict and the need for all parties to make efforts toward reconciliation.
H.Res.587 is a good example of this form of recognition because it also “[c]alls on members of the Tamil National Alliance to acknowledge past relationships with the LTTE and make a commitment to reconciliation and a long-term political solution.” I might quibble with some of that language, and, in light of recent events, it might be worded more affirmatively, for example, by “welcoming recent statements by Tamil National Alliance leaders calling for accountability for both LTTE and government crimes.” Regardless of those specific details, the important point is that even though some constituencies oppose including that type of language, doing so makes such efforts less vulnerable to charges of bias and thus probably more effective.
4. Sanctions
Congress should continue its stance on the restriction of military assistance, technology transference, and financial support through international financial institutions for Sri Lanka.
It may be valuable for Congress to revisit such restrictions to see whether they should be expanded especially in light of independent reports of ongoing abuses (including in the Northern Province and widespread torture and sexual violence).
It is also time to consider developing other forms of pressure. The United States is Sri Lanka’s second largest export market; the European Union its largest. EU officials have suggested they have no plans for economic sanctions, yet they have suspended Sri Lanka’s preferential trade status (GSP+) on the basis of lack of accountability for war crimes. The US should consider developing similar forms of pressure. Indeed, even just the process of contemplating such actions could help send a message to Sri Lanka’s political and civic leaders about the importance of accountability.
5. Reporting to Congress
The State Department’s Office of Global Criminal Justice performed a valuable task in the past reporting to Congress on accountability in Sri Lanka. That function was especially important when there was a lack of information. There is now, however, ample information. And that particular office’s time and efforts are probably not best spent on another report.
Instead, members of Congress should invite the UN panel for a congressional hearing/briefing once the UN report is finalized in April 2015.
[Editor’s Note: Stay tuned for Ryan Goodman’s post: “Road Map II: Which Laws Could Assist in the Prosecution of a US Citizen for War Crimes—The Case of Gotabaya Rajapaksa”]

About the Author
Ryan Goodman is co-editor-in-chief of Just Security. Ryan is the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law. You can follow him on Twitter @rgoodlaw.
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