By JS Tissainayagam
At the United Nations Human Rights Council (UNHRC) in Geneva next week, the US is to sponsor a resolution on war crimes in Sri Lanka, in collaboration with the Colombo government. This is despite wide recognition that Sri Lankan leaders are implicated in these war crimes.
The resolution is said to ask for a domestic process of accountability with ‘international technical assistance,’ which essentially means Sri Lanka will investigate itself. On a visit to Sri Lanka with colleague Tom Malinowski, Assistant Secretary Nisha Biswal said, “We fundamentally support efforts to create a credible domestic process for accountability and reconciliation.”
Washington’s enthusiastic embrace of Colombo is a replay of its fervent support of Naypyidaw as soon as Burma (Myanmar) announced moves to restore democracy and human rights following the 2010 elections. Today the U.S. is criticised for its premature approval of Burma’s so-called transition to democracy.
Backing a domestic process of accountability in Sri Lanka is a reversal of the stand taken by the US government in March 2014. Then, in deference to international opinion and demands by Tamil victims of the mass atrocities perpetrated by both government troops and Liberation Tigers of Tamil Eelam (LTTE) rebels, the U.S. agreed on a UNHRC resolution calling for an international process of accountability.
So why has the US’s stance changed?
Washington’s stand on dealing with Colombo began undergoing a transformation following the presidential elections of January 8. In that election, Mahinda Rajapakse who is accused of war crimes and crimes against humanity by a UN panel of experts, suffered a shock defeat by Maithripala Sirisena.
On August 17, Rajapakse made a bid to return to power by contesting elections to parliament through the United Peoples’ Freedom Alliance (UPFA), but his party failed to secure a majority. The electorate voted instead for the United National Front for Good Governance (UNFGG), whose pro-U.S. leader Ranil Wickremesinghe is now prime minister. Following this, a ‘national government’ was formed comprising the UNFGG and a group of UPFA members of parliament.
But the U.S. and the international community are misguided in believing that the two elections and a national government have brought about enduring change that merits Washington to collaborate with Colombo on the forthcoming resolution at the UNHRC. This is because despite regime change there is little evidence that the new government has either the capacity or the political will to domestically investigate, try and punish perpetrators of international crimes.
This inadequacy is best seen in examining important institutions of state that will be vital in determining if the process of accountability effectively delivers justice to the victims: the military and the justice system.
Even as he campaigned for the presidency, Sirisena, who has admitted being acting minister of defence “when most of the LTTE leaders were killed,” was insistent that Rajapakse and the military leaders implicated in mass atrocities against Tamils would not be brought before an international tribunal for war crimes.
Installed in power, the Sirisena government intervened directly to protect the status of those in the military implicated in war crimes.
In 2013, a military Court of Inquiry (CoI) investigated the conduct of the military and exonerated its personnel of any war crimes. Despite human rights activists condemning an accused institution investigating itself, Sirisena appointed the man who headed the military’s COI, Lieutenant General Crishantha Silva, as commander of the Sri Lanka Army in February this year. In May Sirisena appointed Major General Jagath Dias as chief of staff of the Army. Dias is accused of war crimes and had to ignominiously leave Sri Lanka’s mission in Berlin as he faced charges in Europe.
Wickremesinghe has been no less emphatic in expressing similar reservations on an international investigation. The parties forming the national government in parliament which he heads are expected formally agree to a common position on “protecting the rights of war heroes who were responsible for liberating the country.” This is expected before the UNHRC meeting later this month.
A further display of a lack of political will of both Sirisena and Wickremesinghe is the failure of the government professing to uphold the rule of law to prevent systematic torture and rape of Tamils by the police and military. Violations during the Sirisena presidency are recorded by International Centre for Truth and Justice Project (ITJP) and Freedom from Torture.
Sri Lanka’s justice system, which is vital if effective remedial justice is to be delivered to the victims, is not neutral when prosecuting government officials accused of human rights violations against the Tamils. The Attorney General’s Department has repeatedly been criticised for this. The Prevention of Terrorism Act (PTA) continues to be on the statute books despite successive governments claiming terrorism in Sri Lanka was eradicated in 2009 with the defeat of the LTTE. Its draconian provisions continue to permit torture and allow the illegal detention of political prisoners thereby condoning impunity of the police and military.
Second, not only has Sri Lanka been reluctant to prosecute errant military and police personnel accused of abuses against Tamils, it has also failed in cases involving the military’s violations overseas. The standout example is 108 Sri Lankan peacekeepers in Haiti accused of rape in 2007. Despite Colombo giving the international community an undertaking that the perpetrators would be punished they remain free.
If the U.S.’s model of a domestic process of accountability is to have acceptable international legal standards and institutions to deliver meaningful justice to the victims, it would need a systematic reform of the justice system. That is hard to envisage in Sri Lanka’s judicial and legal culture today.
Whoever might be convinced by U.S. officials, Tamil victims of mass atrocities are not among them. Their acts of protest against a domestic process of accountability include a mass signature campaign. Unsurprisingly the police stopped this perfectly democratic act of defiance.
Among Tamil political formations, the Tamil National Alliance (TNA), the largest party in parliament was equivocal in its call for international accountability: its election manifesto is silent about it. Facing the wrath of the electorate it is now at sixes and sevens, with some leaders saying the international investigation is over, others that they will call for one if the report is “hard-hitting”, while another said they will accept the domestic mechanism with international experts and still others joined the mass signature campaign denouncing domestic accountability.
As in the case of Burma, in Sri Lanka too the U.S. is applauding superficial gains in democracy and human rights to cover up more substantive advantages it has in geopolitics and commerce. In Burma there was a release of political prisoners and some liberalisation of press laws, while in Sri Lanka there have been mild gestures to Tamil sentiments such as releasing of some land held by the military and the appointment of a civilian governor over a military one in the Tamil-majority Northern Province.
But accountability for war crimes and crimes against humanity goes deeper than gestures. It deals with fundamentals on how those enjoying state power are going to deliver justice to a group traditionally seen as the ‘other’. In the minds of the victims unless there is scrutiny by the international community of the process, it will be perverted. And the U.S. by its endorsement of a domestic accountability process over an international one has laid the cornerstone for the perversion of international justice.