Sri Lanka on the docks: War crimes allegations close in

| by Pearl Thevanayagam

(February 13, London, Sri Lanka Guardian) Crucial times are ahead for Sri Lanka. On the one hand the ICC (International Criminal Court) cannot touch Sri Lanka since it is not a signatory to the Rome Statute to prosecute individuals for serious war crimes but on the other it is possible for the ICC to investigate and prosecute war crimes if the UN Security Council was to refer Sri Lanka to the ICC which has been accomplished by the UNSG report.

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Also there is the clause that individual countries may investigate and prosecute alleged culprits over whom they have jurisdiction, such as those with dual nationality. Therein lies the catch. Palitha Kohonna, Sarath Fonseka, Gotabhaya Rajapaksa et al cannot escape ICC trial and with reputed Human Rights INGOs muscling in on their findings of war crimes Sri Lankan leadership stands open to public scrutiny and possible trials for war crimes. Also, US Secretary of State has warned that US would support war crimes probe and this is not to be scoffed at.

In May 2009 17 countries (Argentina, Bosnia & Herzegovina, Canada, Chile, France, Germany, Italy, Mauritius, Mexico, Netherlands, Slovenia, Slovakia, South Korea, Switzerland, Ukraine, Uruguay, and the United Kingdom) attempted to get the 11th session of the United Nations Human Rights Council (UNHRC) to investigate war crimes in Sri Lanka.

They put forward a resolution that deplored abuses by both the Sri Lankan government forces and the Tamil Tigers, urged the government to co-operate fully with humanitarian organisations and to provide protection to civilians and displaced persons, and made an appeal to the Sri Lankan government to respect media freedom and investigate attacks against journalists and human rights defenders.[33] This was thwarted after the Sri Lankan government received support from China, Russia, India and developing countries.

The UNHRC instead passed resolution A/HRC/S-11/L.1/Rev.2 on 27 May 2009 which commended the Sri Lankan government's actions, condemned the Tamil Tigers and ignored allegations of violations of human rights and humanitarian law by government forces. This resolution was passed by 29 votes to 12 votes with 6 abstentions.

The UN expert panel report published in April 2011 has, based on its findings, recommended that the Human Rights Council reconsider resolution A/HRC/S-11/L.1/Rev.2.

Between 14 and 16 January 2010 the Permanent Peoples' Tribunal held a Tribunal on Sri Lanka in Dublin, Ireland to investigate allegations that the Sri Lankan armed forces committed war crimes and crimes against humanity during its final phase of the war, and to examine violations of human rights in the aftermath of the war and the factors that led to the collapse of the 2002 ceasefire.[55] The tribunal's 11-member panel of judges consisted of François Houtart (chair), Daniel Feierstein, Denis Halliday, Eren Keskin, Mary Lawlor, Francesco Martone, Nawal El Saadawi, Rajinder Sachar, Sulak Sivaraksa, Gianni Tognoni and Oystein Tveter. The tribunal received reports from NGOs and human rights groups, victims’ testimony, eye-witness accounts including from members of the Sri Lankan armed forces, expert testimony, journalistic reports, video footage and photographs. Parts of the tribunal were held in camera to protect the identity of witnesses. The tribunal found the Sri Lankan government guilty of war crimes and crimes against humanity.[56]

The tribunal found numerous instances of human rights violations committed by the Sri Lankan government. Violations between 2006 (end of the ceasefire) and 2009 (end of the war) included: bombing civilian objectives like hospitals, schools and other non-military targets; bombing government-proclaimed ‘safety zones’ or ‘no fire zones’; withholding of food, water, and health facilities in war zones; use of heavy weaponry, banned weapons and air-raids; using food and medicine as a weapon of war; mistreatment, torture and execution of captured or surrendered Tamil Tiger combatants, officials and supporters; torture; rape and sexual violence against women; deportations and forcible transfer of individuals and families; and desecration of the dead.[57] Violations committed in the IDP camps included: shooting of Tamil citizens and Tamil Tiger supporters; forced disappearances; rape; malnutrition; and lack of medical supplies.[57] There was also evidence of forced “disappearances” of targeted individuals from the Tamil population during the ceasefire (2002–2006).[57]

The tribunal concluded that the human rights violations during the war (2006–2009) "clearly constitute war crimes committed by the Sri Lankan Government, its security forces and aligned paramilitary forces, as defined under the Geneva Conventions and in the Rome Statute (Article 8)."Sri Lanka is a signatory of the Geneva Convention but not the Rome Statute. The tribunal found that war crimes were committed irrespective of whether the civil war was considered to be an international conflict or as an internal armed conflict.[The tribunal also found that human rights violations committed in the in the IDP camps and the forced disappearances during the ceasefire (2002–2006) "clearly constitute crimes against humanity" as defined under Article 7 of the Rome Statute. The tribunal could not find enough evidence to justify the charge of genocide but it requested that a thorough investigation be held as some of the evidence it had received indicated "possible acts of genocide". The tribunal could also not find enough evidence to justify the charge of crimes against the peace. The tribunal stated that the crimes committed by the Sri Lankan government against the Tamil Tigers could not be justified because "neither war crimes, nor crimes against humanity would be justified by any act committed by the victims". The tribunal found that the USA and UK undermined the ceasefire by pressurising the EU into designating the Tamil Tigers as a terrorist organisation. This allowed the Sri Lankan government to re-start the war and thus commit the human rights violations.

The tribunal made a number of recommendations to the Sri Lankan government, UN and international community, including that a UN special rapporteur be appointed to "investigate and identify responsibilities for human rights violations, violations of humanitarian law and war crimes committed by all parties in conflict". The tribunal's findings were completely rejected by the Sri Lankan government.

The LLRC appointed in the aftermath of the conclusion f the war against the LTTE failed to placate the international community on many fronts.

First of all it failed to add to its final report the evidence of first-hand witnesses who are victims during the last stages of war who made submissions of rape, abductions and murders at the hands of the government security forces. Instead it chose to take evidence from retired government servants, media personnel who had never sighted the war during its last stages government servants who were compelled to protect their skins or else face arbitrary abductions and murders.

Compounding their predicament the witnesses who could have come forward were constrained by lack of witness protection. Not unlike the Kokkadicholai massacre by the government security forces those who gave evidence such as the Grama Sevaka (village headman) of Mahiladicholai was found murdered after he gave evidence at the BMICH in Colombo in 1992 the witnesses restrained themselves from giving evidence.

But there is only so much the populace can tolerate and the time is now ripe to put human rights in Sri Lanka in some sort of order. Law and order has become the prerogative of the Rajapksas. Impunity, corruption and nepotism have taken over democratic governance. If Maldives is anything to go by, the end of this anarchy in Sri Lanka could spell the doom for an upstart of a puerile family of the Rajapaksas who tend to rely on astrological predictions and their own short-lived ascendency as pseudo-monarchs. No amount of patriotism and Sinhala Buddhist reliance can save the dynasty except truth and justice.

( The writer is Asia Pacific Journalism Fellow at UC Berkeley Graduate School of Journalism, California and a print journalist for 21 years. She can be reached at pearltheva@hotmail.com)

Sources: UNHRC and ICC websites