April 22, 2011/By Sivanendran
The end of the three decade old civil war that pitted the government against the LTTE and divided the population created a reasonable expectation that Sri Lanka would be able to reach reconciliation and healing, which would pave the way for rapid economic progress. But alas the country appears to be getting more divided and polarised than ever before.
Fifty years of ethnic cleansing have wiped out whole generations who knew any sort of peace, and have made cohabitation between the Tamils and the Sinhalese people in Sri Lanka virtually impossible. The Sinhala politicians have transformed the country into a counter-insurgency state like Columbia, in which repression, torture, imprisonment without trial and disappeared people are institutionally embedded. It appears that it is an extremely difficult task for the Sri Lankans to reverse this process.
Violation of Human Rights in Sri Lanka
With the end of the civil war, there was a glimmer of hope in resolving the longstanding crisis. However, this is unlikely. The current regime having come back to power appears to block meaningful efforts at accountability of individuals for past violations of human rights.
Sri Lanka will continue to be faced in the future by challenges of justice and reconciliation arising from the grave human rights abuses that have been committed by all armed groups in the course of the conflict, as documented over the years by international human rights groups and UN bodies, which have long declared that impunity reigns increasingly unchallenged in the country.
When the Sri Lankan Government formally terminated the ceasefire agreement in January 2008, the previous UN High Commissioner for Human Rights, Louise Arbour, warned that violations of human rights and humanitarian law could entail individual criminal responsibility under international criminal law, including by those in positions of command. She and her successor, Navi Pillay, have had cause to repeat this warning on several occasions since.
In the course of fighting, both sides violated humanitarian law. The LTTE forcibly conscripted adults and children, and forced civilians to travel with its retreating forces and to serve as a buffer against the approaching Sri Lankan army. Thousands of these civilians died when government forces fired artillery into areas densely populated with civilians, who were forced to remain at risk in the conflict zone. The LTTE reportedly opened fire on and killed civilians who attempted to escape.
The Culture of Violence continues
The demand of the Tamil people for a separate state started only after the repeated pogroms suffered by the Tamil people at the hands of the Sinhalese. Inaction by successive governments in Sri Lanka to provide security to the Tamils resulted in their alienation from the Sri Lankan state as it progressively identified with the Sinhala thugs in the streets. Instead of providing protection to its citizens the Sri Lankan state became more tolerant of the inciters to violence on the Tamils. This resulted in the demand for Ealam, a separate state by the Tamil people.
Nothing has changed for the Tamils since the end of the war. In the North the Tamil people are terrorised by an occupied Sinhala army and kept virtually in an open prison. The Tamils in the East are condemned to live in terror of being killed under the joint patronage of the government and the feuding para-militaries. And in the Vanni, where a battle was waged between the Tamil Tigers and the Sri Lankan State – where the Government indiscriminately bombed and maimed the Tamils who they claim to be their own citizens – the whole area is evacuated since the war and the government is cleaning up the land and removing all evidence of its atrocities. And in the remainder of Sri Lanka, where any Tamil is viewed with suspicion and treated more as an outsider than as a citizen of Sri Lanka, subjected to arbitrary arrests, killings, kidnappings, extortion all carried out with impunity from apprehension or justice. In short, the Tamil people are still languishing in all corners of the Sri Lankan state and find themselves as exiles in their own land.
The government removed all international NGO’s, UN organisations and all media from the war zone and continued with a war described as a War without Witness. The civil war thus created more than 500,000 Internally Displaced People (IDP), most of them still dispersed and still living outside their homes. The IDP’s have been generated by the expulsion of the Tamil population from their land so that the security forces could establish secure areas. Hence the entire Tamil population along the coastal line of the Northeast have been expelled. Further the people who inhabited the Vanni areas are now dispersed.
Further, it is estimated that more than 100,000 Tamils must have perished during the civil war over the past 25 years and at least a further 100,000 maimed and injured. It is estimated that another 50,000 – 100,000 were killed during the last weeks of the war. It suggests a determination by the State to simply wipe out as many people as possible and not to follow the rules of international humanitarian law. Some of those who came to surrender to the security forces holding a white flag were shot. There is video footage of troops killing surrendered people that is published and verified for its accuracy.
There have been reports of abductions of children from the camps and the ‘disappearance’ or murder, possibly by paramilitary groups operating within the camps, of LTTE cadres who are currently being held in them. Once they have been identified, the authorities are sending LTTE cadres to separate camps where they will undergo “rehabilitation”. There have been accusations that the authorities are treating every civilian in the camps as a possible LTTE suspect and sent to special camps.
4.1 Cry for Justice
In the circumstances, accounting for the conduct of soldiers, their commanding officers, and civilian superiors during the fighting is crucial. However, it is only part of the challenge Sri Lanka faces in repairing its battered human rights record and restoring public faith in its government, justice system and the rule of law. Today Sri Lanka has a chance to rebuild its institutions so that they can protect efficiently and without discrimination the human rights of every woman, man and child. Accountability for violations of human rights and humanitarian law is an important precondition to bind up the nations wounds and rebuild the country and achieve a lasting peace.
The conflict in Sri Lanka has not yet been put on the formal agenda of the UN Security Council as a country situation. While in general there was little appetite for doing so until late 2008, in recent months it is Russia and China that have blocked more concerted efforts by other members of the Security Council. The apparent inaction of the Security Council has been the subject of heavy criticism by those who believe it should have played a much more active role than it has. More than anybody else the suffering Tamils have been crying silently for justice for those killed in the bloody massacre in the early months of 2009.
United Nations and the International Community
There has also been some activity on Sri Lanka within UN human rights mechanisms. Since late 2007, international human rights groups and their local allies have been lobbying for a UN human rights monitoring mission to be established in Sri Lanka, supported by the then UN High Commissioner for Human Rights, Louise Arbour and her successor, Navi Pillay. These calls have been consistently rejected by the Sri Lankan Government but remain ‘on the table’ internationally, at least in theory.
Efforts at the 10th session of the HRC in March 2009 to win agreement to hold a special session on Sri Lanka were unsuccessful, despite support from some European countries. However, attempts to secure such a session continued and a special session eventually took place on 26-27 May. The Sri Lankan Government marshalled support from China, Russia, India, Pakistan and other countries to prevent a critical resolution being passed. Despite the efforts of a range of western governments, there was no call in the resolution that was eventually passed for an international war crimes investigation like the one it had mandated earlier in the year with regard to the conflict in Gaza.
Sri Lanka will also continue to be faced in the future by challenges of justice and reconciliation arising from the grave human rights abuses that have been committed by all armed groups in the course of the conflict, as documented over the years by international human rights groups and UN bodies, which have long declared that impunity reigns increasingly unchallenged in the country.
At an event in the IVTY courtroom, marking the Srebrenica massacre in July 2010, Secretary General Ban Ki Moon stressed the need to ensure accountability for those involved in the Muslim men by Bosnian Serb forces after they took over Srebrenica. He said “Until all those accused of genocide, crimes against humanity and war crimes face those charges and are judged, our quest for justice, and the path towards healing, will remain incomplete.” Further, he said, “ We recognize the burden of families and loved ones who carry the memories and pain with each step,” and noted “And, we vow, together, never again to allow such an atrocity to happen at any time…in any place.” The Secretary General observed that the emergence of respect and trust after conflict depends heavily on bringing the perpetrators to account.
Sri Lankan Government
The Sri Lankan Government has said that its own courts will look into any war crimes allegations, although it has already stated that it believes such allegations to be unfounded. It seems highly unlikely, given the past record of the Government and the judiciary, that there will be a credible domestic judicial investigation into allegations that genocide, war crimes and crimes against humanity have been committed in the course of the conflict, with the possible exception of the former LTTE cadres now in custody.
However, in that event an international investigation of some kind remains possible. The US and EU have now endorsed the idea. The Security Council or the Human Rights Council could initiate such an investigation. However, Sri Lanka probably has enough allies on both bodies to prevent such an outcome.
For its part, the ICC could take up the issue either through referral by the Security Council (extremely unlikely) or under the independent authority of the Prosecutor. The latter would be highly controversial. The Prosecutor has not yet used this power and Sri Lanka is not a State Party to the Rome Statute. However, there have been calls by advocates of the Tamil cause for him to take up the issue of war crimes committed by four senior officials. He has not yet officially responded. Efforts to establish some kind of international war crimes investigation look set to continue, but the odds are strongly against a role for the ICC.
However, the mounting humanitarian crisis has compelled the UN Secretary General to name a panel of experts to advise him, on the way forward on accountability issues related to Sri Lanka. There recommendations have been handed over to the Secretary General. At present there is a tussle going on behind the scenes. Meanwhile, portions of the documents have been leaked to the press. Will these recommendations answer the prayers of the victims of this massacre? The Truth must be told and Justice must be done.